Choosing whether to divorce is a difficult decision for a couple to make, and it is far from the last one in the process. Any divorce is prone to complications and emotional proceedings, and military divorces are no different. Divorces where one or both spouses are retired or active military members also come with unique complications that aren’t present in a civilian divorce.
Although a military divorce still deals with the division of property, child custody determinations, and other essential aspects of separation, there are additional state and federal laws that affect the divorce process. Military members have additional protections against civil claims, including when a civilian spouse files for divorce. This more complex divorce process can increase tension between spouses or simply make it more frustrating for everyone. It can be useful to work with an experienced divorce attorney when filing for a military divorce to limit the stress of the process and ensure that all the requirements are met.
Military divorces have unique issues in regards to military retirement benefits, spousal support, and child custody and support, particularly when one or both spouses are still on active duty. You need a qualified attorney who understands the intricacies of these requirements and how military regulations, federal law, and state law interact during the process of filing and negotiating a divorce.
At the Carlos Navarrete Law Firm, we have over 23 years of combined legal experience to bring you compassionate legal support during this stressful portion of your life. We understand what is at stake in a divorce for you and your family. Divorce laws are constantly changing, and it can be hard to determine how these changes impact your unique situation. We can help you understand how your family may be affected by these laws and what legal solutions are available. Our attorneys use our experience and knowledge to find an efficient and beneficial solution for your military divorce while maintaining open and straightforward communication with you throughout the entire process.
To file for a military divorce, you have to meet the basic filing requirements of any divorce. This includes having the grounds to file for divorce and meeting the state residency requirements.
California is a no-fault divorce state, and this doesn’t change no matter the type of divorce that a couple is filing for. Under no-fault laws, a divorce can be filed based on one of the following two grounds:
California does not have any fault-based grounds for divorce, so spouses cannot file based on allegations of cheating, abandonment, or domestic violence. However, these issues may still impact other aspects of a divorce, such as the allocation of spousal support or how child custody is assigned.
One or both spouses must also meet the residency requirements. When one or both spouses are on active duty, this can make it more complicated to meet the residency requirements in California. In a civilian divorce, spouses file in the county they live in. The typical residency requirements for divorce are:
In military divorces, an active-duty spouse may be elsewhere in the country or even in the world. If a military couple wants to get a divorce in California, at least one spouse must be stationed in the state or have been a resident of the state for six months. If neither spouse meets these requirements, they can either wait until they do or file in the state where they meet the residency requirements.
A military divorce has complications even if any military spouses are no longer on duty. When one or both spouses are on active duty, however, the Servicemembers Civil Relief Act (SCRA) comes into effect. This is a federal act that gives active military members additional protections and relief from civil actions and other issues. SCRA protections extend to:
This affects divorce proceedings, as the SCRA allows the divorce proceedings to be postponed when an active military member receives a divorce summons. If the judge on the divorce case allows it, the active military spouse can request that the divorce proceedings be postponed until a reasonable amount of time after their return.
In a civilian divorce, a spouse who refuses to answer a divorce summons can have a default divorce entered against them. A default judgment occurs when the spouse who was filed against, the respondent spouse, does not respond and does not attend the divorce hearing. The court will likely then grant the petitioning spouse’s initial requests in the divorce filing. This means that the spouse who didn’t respond to the summons will have no say in the essential aspects of a divorce, such as property division, child support, spousal support, or child custody.
If an active military member is unable to respond to the divorce summons due to their service, the family court cannot enter a default judgment against them. These protections are useful in contested divorces when the petitioning spouse files for divorce and sends their spouse the summons. When spouses are obtaining an uncontested divorce, where they both agree to the divorce, the active military member can sign a waiver to allow the divorce to proceed without their presence. A military spouse who waives their right to postponement should only do so after consulting with an experienced divorce attorney. This more effectively protects their rights.
Active military members are often unable to respond to divorce summons and petitions. In some cases, a default decision is still made. If a default judgment is entered against an active military member, they could request that the default judgment be set aside. To set aside a default judgment and reopen the divorce case, a spouse must prove the following:
The legal requirements to reopen a default judgment can be complex, and an attorney can guide you through the process.
Whether you are a civilian spouse or a military spouse filing for a military divorce, there are several complex issues to manage. A divorce is never easy, and most spouses want to resolve it as efficiently as possible. A military divorce attorney has experience with the unique challenges and problems that you may face, and they can help you protect your rights.
As a civilian spouse, you may have to navigate proceedings being delayed by your spouse under the SCRA. When you want to resolve a divorce in a timely manner, this isn’t ideal. Working with a divorce attorney can help you learn what your options are for filing for divorce and if an uncontested divorce may be useful for your situation.
As a military spouse, you may be unsure how to effectively delay the divorce proceedings or how to overturn a default decision that was made against you. An experienced attorney can walk you through these processes. Your attorney can also help you understand the benefits and drawbacks of waiving your right to delay divorce proceedings. Although it may resolve your divorce more effectively, you may have to take additional steps to ensure that your rights are protected.
A military divorce attorney has experience in many complex and straightforward forms of divorce. They understand the intricate and basic requirements of a divorce, including how to negotiate or litigate property division, spousal support, and other issues. Additionally, they are experienced in some of the unique aspects of a military divorce, including:
An attorney is a necessary asset when filing for a military divorce. Your attorney can protect your interests and help your family find the most favorable solution.
The Uniformed Services Former Spouse Act (USFSA) addresses the rights of states to provide a portion of military benefits to former spouses of military members. Military member benefits include:
It does not entitle a spouse to these benefits but enables a court to award them during the division of marital assets and property. The USFSA does not provide guidelines for how these benefits should be split. In California, a former non-military spouse generally receives only up to 50% of their military spouse’s benefits.
At the Carlos Navarrete Law Firm, our dedicated team wants to help you advocate for your interests. Contact us today to see how we can help with your military divorce.
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