When one or both spouses is in the military or a member of the Armed Forces, there are additional rules for obtaining a divorce in the state of California. There are specific military divorce rules that govern these cases, which must be followed in order to get your divorce case approved by the court.
If you are ready to file your military divorce in California, this article will provide answers to your questions and can be used as a military divorce guide. This article will cover topics such as filing and serving procedures, division of property, child custody, the determination of alimony, and available benefits.
Military divorce proceedings in California
Divorce for military members is regulated by federal law, such as the Servicemembers Civil Relief Act (SCRA), and protection for spouses is provided through the Uniformed Services Former Spouses’ Protection Act (USFSPA). The SCRA provides certain protections to the members of the Armed Forces on active duty. Whenever there is a conflict with the California Code, federal laws take precedence.
While service members are deployed on active duty, they are protected when it comes to the divorce proceedings, and default judgments cannot be taken against them.
If the non-military spouse files for divorce, there will be no court hearings until active duty ends. In addition, under the SCRA, divorce proceedings must be postponed for an additional 90 days after the service has been completed.
A court must have jurisdiction under applicable California military divorce laws and under USFSPA to issue a divorce decree. To file for divorce in California, one of the spouses must be a resident of the state for at least six months and must have lived in the filing county for at least 3 months.
If you are divorcing a military member who has been stationed in California for at least 6 months, you can qualify to file for divorce in California. However, if neither spouse meets the residency requirements, you’ll need to wait to file your case, or file in whatever state at least one of you has residency.
Serving an active duty spouse
When you are filing a divorce case with a military spouse who is on active duty, there are rules for serving the documents. Specifically, the military spouse needs to be served with the documents in person. This service requirement may be challenging, especially if it is difficult to track the military spouse down, or the spouse is deployed to another state or overseas.
Personal service rules require that the divorce summons be personally served by someone who is over 18 years old and not a party to the divorce case.
This means that you cannot personally serve your military spouse on your own. However, if your spouse agrees to accept service and sign a waiver, the divorce papers can be mailed to him or her, which makes the service step easier.
Grounds for a military divorce in California
In the State of California, each divorce case begins by filing a petition for marriage dissolution. The petition includes the grounds or reason for the divorce. A list of these grounds can be found in the California Family Code, § 2310. The grounds for divorce are the same whether you are filing a military divorce or a civilian case.
California law has two grounds for ending a marriage:
- irreconcilable differences - when a couple has no desire to stay together anymore; or
- permanent legal incapacity (insanity) of one spouse.
If you are filing a case based on the insanity of your spouse, the court may require a support order for the spouse who is legally incapable. If your case involves fault-based grounds such as adultery or desertion, the court may consider such circumstances when dividing property or determining child custody.
Filing procedure for military members
The filing procedure in California includes several essential steps. First of all, check if you meet the county’s residency requirements to file your case. If you qualify, you can start gathering documents and filling out the required initial divorce forms. You can find them at the county clerk’s office or online. After the papers are ready, file the forms with the required filing fee with your local superior court.
The next step is to inform the other party that you have initiated a marriage dissolution case. You need to deliver the copies of the Petition and Summons to your spouse. Remember that you cannot give these forms to your spouse yourself.
The person who hands the documents to your spouse must fill out the proof of service form, which must be submitted to the court. Or, if your spouse agrees to waive personal service, someone can send the documents to him or her and then ask your spouse to sign a form called a Notice and Acknowledgment of Receipt.
Next, the receiving spouse will have an opportunity to file a response with the court. The response contains similar information as the petition, and will need to be served on the filing spouse after it has been filed with the court.
California is considered a community property state, which means that all property (or debts) acquired during the marriage is joint property and should be divided equally. On the other hand, any property or assets that were acquired before marriage are the spouse’s separate property and are kept by the individual spouse.
In addition, inheritance and gifts are considered separate property. The spouses can agree how they want to divide their property on their own, but if they are unable to reach an agreement on property division, the court will decide.
While military divorces use the same rules to divide marital and separate property, there are specific laws with respect to military retirement benefits. Members of the U.S. Armed Forces receive retirement benefits that usually account for most of the family’s marital property.
Whether the divorce case involves a spouse who is in the army, air force, or navy, the benefits accrued during marriage will usually be considered part of the distributed assets. The court can divide the retirement pay in half, but only if the marriage lasted longer than ten years.
Child custody and support
In California, the court will not discriminate against a parent who may be on active duty when determining child custody and visitation. When divorcing a soldier, the other spouse should understand that the military spouse will most likely be absent from a child’s life when he or she is on active duty.
Nevertheless, the fact that a service member can be deployed out of state or overseas at any time, is not sufficient to change a custody order or visitation schedule.
Military families with children can decide to get an uncontested divorce if they agree on all of the terms of their divorce, including child custody issues. When filing an uncontested divorce, the spouses are free to determine custody and visitation issues on their own, without the court deciding these issues for them.
Child support is calculated according to state’s guidelines, and also takes into account both parties’ income, the number of children, and the time the child spends with each parent. The amount of child support cannot exceed 60% of a military member’s allowances.
The courts in California may issue an order for spousal support upon request from one of the parties. In a military divorce, just like in a civilian one, a spouse who earns more typically pays alimony in an amount determined by a judge during the proceedings. The factors that are considered when making a support order include, but are not limited to:
- the length of the marriage;
- the financial needs and obligations of the parties;
- the education level and skills needed for employment of a dependent spouse; and
- the health and age of each spouse.
As a rule, spousal support cannot be more than 60% of the military spouse’s pay and allowances. When a couple has been married less than 10 years, support will only need to be paid for an amount of time that is equal to half of the length of the marriage. Spousal support will also terminate if the dependent spouse remarries or passes away.
Then, you have to exchange information on property and debts with your spouse. After that, your case will be scheduled for a court hearing.
Rights and benefits of a military spouse in a divorce
The Uniformed Services Former Spouse Protection Act (USFSPA) is a law that protects the rights of former military spouses and provides benefits to them after the divorce. These benefits may include retirement benefits, free medical care, use of military exchanges and commissaries, and eligibility for the survivor’s benefit plan.
A spouse of a military member is entitled to a portion of the retirement pay after a military divorce in California if the couple was married for at least ten years with a ten-year overlap with active service. There are two different benefit plans, depending on how many years a couple lived together during which a service member was on duty:
- 20/20/20 rule — 20 years of marriage, 20 years of service, and 20 years of overlap between them;
- 20/20/15 rule — 20 years of marriage, 20 years of service, and 15-year overlap.
Military spouse entitlements in the 20/20/20 rule include life-time medical privileges, commissary, and exchange benefits, all of which terminate if a dependent spouse gets married or is enrolled in an employer-provided insurance plan.
For those who fall under the 20/20/15 rule, there is only one year of health coverage and access to medical institutions (hospitals and pharmacies).
How we can help
We understand that military divorces have rules and intricacies that can be complicated and difficult to understand.
If you plan to file your case without an attorney, OnlineDivorce.com will provide you with all of the required divorce documents that you’ll need to file to complete your divorce case.
With our vast experience with California divorce forms, we help couples file their divorce cases quickly and inexpensively.
Frequently Asked Questions
How long does it take to get a military divorce in California?
The divorce process in California will take at least 6 months. You may be able to complete the forms more quickly than this, but California has a mandatory 6-month waiting period, which means that your marital status will not be terminated for at least 6 months from the date your spouse has been served with the petition documents.
Your divorce case may also take longer than 6 months to complete, depending on your individual circumstances.
How much does a military divorce in California cost?
The cost of divorce depends on whether you wish to file your divorce case on your own, or whether you will hire attorneys and/or other divorce specialists.
The minimum filing fee that each spouse is required to pay to file a divorce is $435 EACH. The filing fee is paid to the court when the petition is filed, to open the case, and also when the responding spouse files a response. Divorce costs can increase exponentially when attorneys and other specialists are involved.
Where to file a military divorce case in California?
You will file your divorce case at the Superior Court in the county where either spouse has lived for at least 3 months. The documents should be filed in the clerk’s office at the courthouse.
What makes military divorce in California different?
Since service members have protective acts on their side, such as SCRA, there are some differences between filing a military divorce and a civilian one.
For example, military spouses have the right to postpone divorce proceedings if they are on active duty when the case is filed, they have more time to respond to a summons, and there are specific rules that apply to dividing retirement pay.