Divorce is still such a difficult topic to discuss these days, even though it is fairly common now. The process for a standard civilian divorce is already complicated, but if you add in having one or both spouses in the active military it gets even more complicated. Both state and federal laws are applied in a military divorce and there are special laws that give additional protection to the active military spouse.
First of all, there is a law called the Service Member’s Civil Relief Act (SCRA) that was passed to allow active service members to postpone or suspend any civil actions taken against them, including divorce. The SCRA does 2 things:
- Gives the service member a chance to have a default judgment set aside, if the default judgment is entered while he/she is on active military duty or within 30 days after he/she leaves the service.
- If the service member is served with a summons while on active duty, he/she may be able to postpone the divorce for a reasonable amount of time.
The reason for this is to help these servicemen and women to fully focus on their active military duties and not worry about getting involved with the divorce proceedings right away. This could be an issue for the civilian spouse because the process could drag on for a while. That’s why working with an experienced family law attorney in California from the very beginning is beneficial.
Military Divorce Basics
Another federal law that is applicable to a military divorce is the Uniformed Services Former Spouses’ Protection Act (USFSPA), which was enacted in 1982. It allows the state courts to decide on how or whether to divide military retirement funds. Here is the gist of what else can be done under this act:
- State courts are allowed to divide disposable military retired pay
- The former spouse is allowed to get a portion of the retired pay directly from the government (In certain circumstances. See 10/10 rule below)
- Allows some former spouses continue to have access to health care at military treatment facilities, military exchanges and commissaries
- Grants benefits to some victims of spousal or child abuse
The USFSPA does not require any courts to divide the military spouse’s retirement pay with his/her former spouse. This law also doesn’t provide a formula to calculate the division of military retired pay and there isn’t a ceiling on the percentage, if the courts decide to divide this property.
Residency and Filing Requirements
Typically, in order to file a military divorce in California, one of the following but be met:
- One of the spouses must reside in California
- One of the spouses must be stationed in California
The filing requirements are similar to the divorce process for a civilian couple. Even if the military spouse is serving outside of California or even overseas, they will still need to be served to be notified that the divorce proceedings have begun. There may be issues with serving an active military service member though. It is illegal to be served on a ship or base, as it is against military regulations. In addition, foreign nations may also have rules against this. Discussing this with a divorce lawyer is in your best interest, before you get started.
Military Assets to be Divided
The filing process for military divorce isn’t too different, but the difference lies in figuring out the issues that arise such as: child custody, spousal support, asset division, and determining military benefits. The USFSPA will only be distributed when the couple has been married for at least 10 years. USFSPA also provides a guide to whether former military spouse will be allowed to continue to use the military exchange, commissary, and medical facilities.
The 10/10 Rule in Military Divorce
The 10/10 rule says that if the marriage and service time in the military overlap for a minimum of 10 years, the Defense Finance and Accounting Service will cut the check for the former spouse’s share of the military retirement. If the marriage wasn’t at least 10 years, it is the military spouse’s duty to pay his/her former civilian spouse.
Child Custody, Child Support and Alimony
California follows the family law courts’ guidelines of making decisions based on the child’s best interest, but it goes further to protect the military parent’s rights to child custody. If the military spouse is awarded physical custody of the child and then becomes activated to active or temporary duty, their rights to custody are protected. That means that when they come back from active service, he/she is not deprived of custody for performing their duties in the military. Active military service cannot be used against the military parent in a military divorce to justify a modification of a child custody order. To learn more about child custody, read our Types of Child Custody Arrangements Page.
Child support and alimony is pretty straightforward. California doesn’t allow child support or spousal support awards to be more than 60% of the military member’s pay or allowances. To request child support, the normal proceedings are used.
It’s an unfortunate life event, but military divorce or military separation don’t need to get more complicated than it has to. Work with an experienced military divorce lawyer who is familiar with both California and federal laws, regarding military divorces. Do feel free to call us for a consultation if your question wasn’t answered on this page, as everyone’s situation is different.