Unlike standard family law cases, military divorces in California have a few different rules and stipulations, which include residency requirements and the process of serving papers. Additionally, military divorces must also comply with military rules and regulations and the division of military pensions.
If you are a military couple, for a California divorce court to have jurisdiction over you and your spouse, you must file for divorce in a state where the military spouse is domiciled or a resident, or in a state that you and your spouse both agree to.
Divorce and the military
As we have discussed, divorce is often a difficult process. Many times, a military divorce in California presents other challenges because state law has special stipulations for service members overseas, deployed, or outside of the California jurisdiction.
In order for a California divorce court to have jurisdiction over the military divorce, the active duty member must be personally served with a summons and petition for dissolution of marriage. If the service member is overseas or deployed, the serving process can be rather difficult.
Servicemembers Civil Relief Act
Under the Servicemembers Civil Relief Act, service members are not fully responsible for not responding to a divorce application because they are devoting their energy to the nation’s defense needs. Therefore, a court can delay the divorce proceedings for the time that the service member is on active duty and for up to 60 days following active duty. However, the law does not allow the military spouse to completely neglect the divorce papers. Discuss this fine line with an experienced divorce lawyer in Los Angeles.
If the service member refuses to accept service, the court can appoint someone to serve the papers. However, service on a ship or base is a violation of military regulations. Additionally, service in a foreign nation could be a violation of the Hague Convention. Under the Hague Convention, which over 30 countries are parties to, the summons and petition should be mailed to the central authority in that county, who then services the service member in that jurisdiction.
Federal laws for California military divorce
Regardless of the spouse’s active duty location, federal agencies and uniformed service members are responsible for facilitating the legal process.
Division of Military Retirement and Pension
Military assets, including a service member’s military pension, VA Disability, and Survivor Benefit Plan, are extremely valuable. These assets are marital property and can be divided like any other marital asset in a standard California divorce, as long as the California divorce court has jurisdiction over the proceeding.
Jurisdiction to divide military assets
In order for a California divorce court to divide a military pension, the court has to have the authority to do so from the military spouse’s consent or legal residence in a state. Being stationed in a state does not alone constitute residency. Consent does not have to be expressed verbally, because the court can reasonably assume consent from both participants in the divorce proceeding.
The 10/10 rule
If the marriage and military service overlap for at least 10 years, the Defense Finance and Accounting Service pays the former spouse’s share of the military retirement. Otherwise, if the overlap is for less than 10 years, the military spouse has to cut the check.
For more information on how to file for divorce from your military spouse, contact the expert Los Angeles family lawyers at Walzer & Melcher today.