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Military Divorce

A California military marital union is not similar to a civilian marriage. This is because a military spouse spends several months or years away from his/her partner, and might not have the same priorities as compared to civilian married couples. On this note, a military divorce is also significantly different compared to a non-military divorce, especially when the partner is overseas on duty during the filing of the divorce. For one, the process of filing for a military divorce could be different as there are certain special requirements you won’t find in civilian divorce processes. These requirements need for you to consult with a military divorce attorney first before beginning the process.

If your spouse is in the military and is considering divorce, talk to attorneys at Los Angeles Divorce Lawyer law firm. Our lawyers are conversant with California family laws in regards to military marriages and divorces. They will help you throughout the process and assist you in achieving the best possible results for your case. This article is all about what you should know if you are a military couple in Los Angeles, CA contemplating divorce.

Where Can You File for Military Divorce?

Because active members of the military live all over the U.S and the rest of the world in the course of stationing, one may have difficulty deciding where he/she will file the divorce. In a civilian marriage, a person files for the divorce in their country of residence. However, for military spouses, they have to file the divorce where the member of the service is stationed or the state they are residents.

If you haven’t been posted in a place for a long time, filing for the divorce where you are stationed may not be an option. If you aren’t yet a lawful inhabitant of the state where you live currently, you have to either file in the state where your partner has residency or wait until you become a legal resident. For you to file for a military divorce in California, one of you (your wife/husband) must be a resident of or be stationed in the state.

You need to have been a California resident for 6 months and county (Los Angeles) inhabitant for 3 months to file for a military divorce in the state. If you meet these requirements, you can then file a ‘Petition for Dissolution of Marriage’ with your county superior court. Note that your military husband/wife doesn’t need to be present when filing. However, California law provides that the spouse that isn’t filing be informed of the divorce proceedings irrespective of where they are deployed.

Serving of a Military Partner Stateside

As we mentioned above, if you file for divorce in California, your spouse has to be served. That is, he/she must be formally informed that you have started divorce proceedings. In case your partner resides off-base, then the procedure is the same as in a non-military divorce. The divorce papers can be served or delivered by mail or in-person with a Notice & Acknowledgement of receipt. In case your spouse lives on-base, he/she can be served by a sheriff or process server in person. If you have difficulty doing this, you can reach out to base officials for help in availing the member of the service (your spouse) to receive the papers.

Serving a Military Spouse Overseas or On Base

Members of the military that are overseas are often served by certified mail accompanied by return receipt to their Fleet Post Office or Army Post Office address. Note that certain countries require services via special channels. It’s not all military amenities that are created to process the necessary return receipt or receive certified mail. Should you have questions or concerns about a given duty station, call the office of the base operations manager or base commander.

After being served, the non-filing spouse has to file a response to the divorce proceedings. However, in case you bring a divorce lawsuit while your husband/wife is on active duty or deployed for a more extended period, the statutes are a little different. When members of the service are on active duty, they are protected by a federal statute known as the Servicemembers Civil Relief Act (SCRA). This law protects these members of the service from things like:

  • Interest rates of credit cards
  • Evictions
  • Payments of income tax
  • Health and life insurance payments
  • Foreclosure or mortgage interest rates
  • Security deposits
  • Rental agreements
  • Vehicle leases

Additionally, the SCRA safeguards members of the military from civil judicial proceedings, divorce summons included. If this statute safeguards active military members from being capable of responding to a divorce action, the court can’t hold the individual in default. This is different from a civil divorce action whereby if the spouse doesn’t respond, it kicks off the default process. In other cases, it leads to an uncontested divorce.

Default Judgment Against Members of the Military on Active Duty

Default judgment refers to a judgment that’s entered against the spouse who fails to answer to a divorce claim made by the other party. They work in a way that the partner that didn’t respond to  the summons of the filing party will have no say when it comes to child custody or property division matters.

 If you’re a military member on active duty, it could be challenging to give a response to your partner’s divorce petition, particularly if you’re stationed overseas. Therefore, the SCRA law requires that the person that files for divorce signs a written statement of facts showing that his/her spouse isn’t in military service and hasn’t requested a delay of the divorce proceedings.

The SCRA law permits the courts to hold up the proceedings of the divorce for the period of the partner’s active duty. Should he/she choose so, the deployed party could waive the postponement of the divorce proceedings. However, if this happens, the member on active duty should hire a lawyer to defend their rights in the proceedings.

In case your partner has presented a petition to divorce in court, but you were incapable of responding to it, leading to a default judgment, you can reopen your divorce case. Then, you can have the judgment annulled. For you to reopen your case, these four conditions have to be met:

  • You have to prove that the judgment went into effect during your active service in the military or thirty days after leaving the service
  • You have to present a request in court seeking to reopen your case while you’re still on duty or within 90 days after leaving military service
  • You mustn’t have appeared in court whatsoever for your divorce proceedings before the judgment was enacted, including filing a response to your partner’s divorce petition, making an actual court appearance
  • You must show that the military service tied down your capability of defending your case. Then, prove that you can validly defend yourself in the case against you

Reopening divorce cases or trying to annul default judgments can be very complicated. You have to hire a skilled military divorce lawyer who boasts the experience of annulling default judgments. Failure to which could make you lose the right to reopen your case.

Postponing Divorce Proceedings

As per the SCRA laws, if you’re a military member on active duty and your spouse serves you with a divorce petition, you can temporarily postpone the proceedings up to the time you are capable of appropriately proceeding in the case. You could use a stay or postponement to delay a particular aspect or the entire proceedings. Therefore, you can request to have the proceedings postponed at any stage provided you are on active military duty. You can request a postponement of the case for a practical period in case your request is accompanied with:

  • A communication, for instance, a letter showing that your present active military duty requirements hinder your capability of appearing for the case. The communication has to indicate the date that you’ll manage to appear
  • A communication like a letter from your officer in command mentioning that your duty hinders you from making court appearances and military leave isn’t permitted at that time.

It’s critical to keep in mind that the court must be inclined to postponing your divorce case for the set period as per the SCRA. It’s unlikely that your divorce case will indefinitely be postponed. If you need an extended stay, you can file another request in court. Note that it’s entirely in the court’s discretion to deny or grant the request to have an additional stay. Requests to stay divorce cases can be quite difficult to pull through. Thus, you should not attempt to request the stay without the expertise of a military divorce attorney.

Child Custody in Respect to Deployment in a Military Divorce Case (Family Code 3047)

When deciding on child custody, courts always assess and strive to create a court order that’s in the child’s best interests. This criterion is also applied in creating permanent and temporary custody court orders in cases of military divorce. Issues of child custody in military divorce differ from each other in the manner that a judge assesses modifications to custody orders. Should you have a custody order allowing you physical child custody and you’re on active or temporary military duty, your right is still protected. This means that when you come back from your mission, you will not be deprived of the custody of your child for carrying out your military duty.

Family Code 3047 of California states that the absence of a parent, their relocation, or failure to obey custody and visitation orders because of being on active or temporary military duty won’t in itself is enough reason to warrant a modification on a child visitation or custody order. This is to mean that if you’ve been granted child visitation and custody rights, and then get deployed, your partner cannot seek to obtain a permanent modification on the child visitation and custody orders in your absence.

What the judge will do is implement temporary visitation and custody orders, which will be applied until you’re no longer on duty. When you return from duty, the court will return the orders to how they were prior to your deployment. The court doesn’t view being on active military service as a change in circumstances that can justify a modification.

Child visitation and custody issues may be the most complicated matters of family law. If you’re a military spouse or military member on active duty, you shouldn’t try to solve any child visitation or custody problems by yourself. You should seek an attorney’s expertise that will assist you in fighting to get the best possible results in your situation.

Is BAH Counted as a Child Support Income?

Amongst the unique aspects of being a U.S military employee is the different types of compensation provided to members of the military service. Apart from being paid their salary, most of these members also get benefits called BAS (Basic Allowance for Sustenance) and BAH (Basic Allowance Housing). These allowances create extra money apart from the base salary offered to members of the service to compensate for basic living costs. Divorce lawyers frequently ask if BAS or BAH allowances are considered as income counted for child support.

In family law-related cases in California, several spouses and their divorce lawyers have remained undecided as to whether BAS and BAH should be regarded as income counted for support. Military couples have claimed that military-related allowances aren’t income for federal income tax purposes, so they shouldn’t be treated as income for child support/alimony. In response, non-military partners have held that military allowances are income since they directly lower THE living expenses of a service member. Therefore, they have to be regarded as income for support. Also, military partners have reasoned that federal preemption statutes forbid California courts from adding BAS or BAH in their support calculations.

The Court of Appeal of California, in 2010, clarified the debate concerning whether BAS or BAH should be regarded as income for support. At the level of a trial court, it was ruled that if it resembles income, then it’s income regardless of how it’s paid. And, therefore, the trial court has always regarded BAS and BAH as income for support. The Court of Appeal upheld the comprehension of the law of the trial court. It has, too, held that BAS and BAH are income for support.

Division of Reserve or Retired Military Persons’ Benefits

The Uniformed Services Former Spouses Protection Act (USFSPA) recognizes the rights of state courts to divide military retirement benefits and pay to ex-spouses. For you to be able to divide your military retirement benefits and pay, the court has to first issue you with a court order. Courts don’t distribute these benefits automatically. Therefore, generally, in California, an ex-spouse could be awarded a maximum of 50% of the retirement benefits and pay that are regarded as community property. After a court order for distributing the retirement benefits and pay has been issued, the (DOD) Department of Defense then oversees the implementation of the order. This is to ensure that the USFSPA protects both parties.

We have several exclusions and exceptions when it comes to community assets and property division in California divorce cases. Dividing military retirement benefits and pay between the both of you can be complicated as well as confusing. However, an expert military divorce lawyer can help you make it simpler. First, he/she explain your rights to you and make sure the property division is done in a just manner.

Summary Dissolution

Summary dissolution is a simple and quick way of getting a divorce if the divorce goes uncontested. For you to be eligible for summary dissolution, you should meet various requirements. They include:

  • You should have been in the marriage for five or fewer years
  • You shouldn't have children
  • You should possess minimal property and debts
  • Neither of the spouses should be seeking spousal support

In case you meet all these requirements, you and your spouse will complete, sign, and then file a Joint Petition for Summary Dissolution. If your spouse is on service overseas, he/she could sign the petition as well as any other required forms, then send them back to you through the mail. Then, you will file the joint petition on behalf of the overseas military member after adding your signature. The petition is accompanied by two self-addressed envelopes that should be stamped. One envelope is yours and the other for your spouse.

Hire an Expert Military Divorce Attorney Near Me

Even though military divorce cases and civilian divorces are similar in most aspects, we have several significant differences that can somehow make the process difficult. Therefore, it is best that if you are considering embarking on the military divorce process, you talk to a competent family law lawyer. An attorney that has experience handling these types of cases will help you in achieving the best results there can be for your case. At Los Angeles Divorce Lawyer, we have been solving military divorce cases as well as other cases related to family law for a considerable period. You can depend on us for trusted, unbiased results. We take clients from Los Angeles, CA, and the surrounding areas. To consult with our experienced attorneys, contact us at 310-695-5212. We are available 24/7 to tend to your needs.

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