Military Issues

Cases in which one or both spouses are in the military present unique problems:

• Jurisdiction. This means the court's authority to decide a case. A court may have jurisdiction to dissolve the marriage (grant a divorce), but not to order support payments. Or, a court may have jurisdiction to order support payments, but not to divide the military retirement. Jurisdiction to make child custody and visitation orders is governed by a different — and complicated — set of laws. Sometimes, the military member may file for dissolution of marriage in the state of military assignment, and the spouse may file in another state. The question of which state has jurisdiction, and over what issues, may be difficult and requires expert legal advice.
• Enforcement. Federal law protects members of the military service while on active duty. The court cannot make enforceable orders against an active duty military member unless he or she has legal representation. The judge will appoint an attorney for a military member who does not have representation and is not present in court to represent himself or herself.
• Military Dependents. Service members are required to provide certain benefits for their dependents. In case of a marital separation, it is important to know the rights of the non-military spouse.
• Military Legal Assistance. The military offers legal assistance for uncontested matters, where the spouses have an agreement. But beware: the military attorneys who draft the agreements do not have to be licensed in California and may be unfamiliar with California law. A poorly drafted agreement may create major legal problems later on, that will be very expensive to fix.
• Military Protection From California Divorce Proceedings. There are laws set up to protect active duty military members against being held in "default" from failing to respond to a divorce or civil action (which a d. These laws were enacted to protect active military from being divorced without knowing it. Under the Servicemembers Civil Relief Act, and in the discretion of the local California court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (this is typically the case when the active member is serving overseas due to war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
• Serving an Active Military Spouse. The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a California court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
• Residency and Filing Requirements. The typical military divorce filing requirements are as follows:
  • You or your spouse must reside in California
  • You or your spouse must be stationed in California
• Grounds for California Military Divorce. The grounds for a military divorce in California are the same as a civilian divorce.
• Dividing the 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 military retirees pay to the former spouse. The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
• Child Support and Spousal Support. In California, both child support and spousal support/alimony awards may not exceed 60% of a military member's pay and allowances. The normal California child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.