Special Issues in Military Divorces

The logistics of divorce can be complex. Who will live where? Who will care for the children? How will the marital assets be divided? While the divorce process and its associated logistics can be nightmarish for any couple, it can be especially so in military divorces. Service members and their families face a unique set of challenges when it comes to divorce, not least because, unlike civilian divorces, military divorces can implicate both state and federal law. If you or your spouse is in the military and you’re considering a divorce, a Stockton divorce attorney can assist you. 

Jurisdiction 

It’s no secret that military families relocate frequently, even giving rise to the term “military brat.” But frequent relocations can be problematic in many areas, including divorce. To file for divorce in California, either you or your spouse must have lived in California for the past six months and in your current California county for the past three months. (For Stockton residents, that’s San Joaquin County.) If you or your spouse do not meet those requirements, you’ll have to wait or file in whatever state at least one of you has residency. 

Service of Process

Typically, the divorce process begins when the spouse seeking the divorce files a petition and serves papers on the other spouse. If the respondent spouse does not respond, the petitioner can seek a default judgment, which essentially means the court resolves the issue without hearing from the respondent. That’s not necessarily how it works in military divorce, however. Service members have certain protections under the Service Members Civil Relief Act (SCRA), which allows them to request a stay of proceedings if their military duties prevent them from appearing in court, as well as prevents courts from entering default judgments if the service member is unable to appear.

Child Custody 

The SCRA applies to all civil actions, including both divorce and child custody. Generally, service members on deployment can invoke their right under the SCRA to delay changes to child custody, and any temporary orders a court issues must terminate within the time frame justified by the deployment. The SCRA also prohibits courts from considering a parent’s absence due to deployment or the possibility of deployment when determining the best interest of the child. 

Retirement Benefits Division 

The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to treat military retirement as a marital asset that is subject to division upon divorce. However, the USFSPA allows the military to issue retirement benefits directly to former spouses only if the marriage and a period of military service overlap for at least 10 years. If they do not, the benefits are still divisible, but the former spouse must seek them directly from the service member, which, depending on the relationship between the parties post-divorce, could be tricky.  

Begin a Military Divorce With Help From a Stockton Divorce Attorney 

If you or your spouse is in the military and you are considering a divorce, your best bet is to seek the counsel of an experienced attorney before beginning the process so that you’ll know what to expect. To get started, please contact a Stockton divorce attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.