A California military divorce creates several different and unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules apply to military divorces.
Military Protection From California Divorce Proceedings
There are specific laws in place to protect active duty military members against being held in “default” from failing to timely respond to a divorce action. These laws were approved to protect active duty military members from being divorced while on deployment without knowing it and/or having the opportunity to be involved in the divorce.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local California Court, the divorce proceedings may be “stayed” or postponed for the entire time the active duty service member is on deployment and for up to 60 days thereafter. This right to have the divorce proceedings “stayed” or postponed can be waived by the service member spouse should he or she wish to proceed with the divorce.
Serving an Active Duty Spouse Stateside
If your spouse lives off base, the process is the same as a civilian divorce. The active duty spouse must be personally served with a Summons and Petition for Dissolution of Marriage as well as all supporting documents and court dates in order for a court in California to have jurisdiction over the active duty member.
Serving an Active Duty Spouse on Base or Overseas
If your spouse lives on base or is overseas, the military spouse may be served by certified mail with return receipt to their Army Post Office or Fleet Post Office address. However, not all military facilities are set up to receive certified mail or process the required return receipt so if you have questions about a specific duty station, contact the office of the base commander or base operations manager.
In an uncontested case, meaning, both parties want the divorce, the military spouse may not have to be personally served if he or she signs the Notice of Acknowledgement and Receipt, which lets the Court know the military spouse is aware of the divorce proceedings.
Residency and Filing Requirements
The California military divorce filing requirements are as follows:
- You or your spouse must have resided in California for at least six months prior to filing for dissolution, and
- You or your spouse must be stationed in California.
Division of Property
Along with the normal California property division laws, the federal government has enacted the Uniformed Services Former Spouses Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a service member’s retirement pay to go to the non-military spouse.
The federal laws will not divide and distribute any of the military members retirement to the non-military spouse unless they have been married for ten (10) years or longer while the member has been in active duty military.
Child and Spousal Support
Both child and spousal support are determined the same way they would be in a civilian divorce, but in California, both child and spousal support awards may not exceed 60% of a military member’s pay and allowances.
For questions regarding a California military divorce, call Cage & Miles, LLP at 858-376-7251.