Governing laws. Military divorces are governed by federal law and are also subject to the laws of the state the divorce petition is filed. Federal law dictates division of military pension, certain emergency child support orders and some base privileges to former spouses. California governs all other issues, such as other property distribution under community property laws, child custody and child and spousal support.
Significant issues for how to get a divorce in the military. Common concerns and significant issues due to a party being in the military include:
- Deployment. If a member is on deployment, it can seem impossible to get through the military divorce process. Communication is difficult and quite frequently is not allowed. Both parties may feel helpless in communicating their needs and wants for obtaining a divorce. Additionally, serving a military member on deployment may become difficult and is governed by the SCRA. In order for a court to have jurisdiction over a military divorce case, the military member must be personally served with divorce papers. This can be a difficult process, but federal regulations have recently made service easier on military couples with children.We understand the communication and service of process issues while a client is on deployment or while representing a spouse of a military member on deployment. We are experienced in handling military divorces without face to face contact and will work tirelessly to communicate every pertinent legal issue and to keep you fully informed.
- Filing requirements. In order to file for divorce, domicile and residency must be established. This can become challenging with a family that moves around a lot or when the military member is on deployment. In California, residency or domicile is established where the military member is stationed or where the military member or spouse resides.
- Frequent relocation. Military members often have to relocate which can adversely affect visitation and custody rights to the children. It is important to recognize this when negotiating the terms of the divorce.
- Relocation of the non-military spouse with primary custody. Often times, the non-military spouse with primary custody of the children relocates because the military member frequently moves to different locations to perform their duties. This must be carefully taken into account when negotiating the terms of the divorce because it can drastically affect the military member’s visitation and custody of the children.
- Pay increases and decreases. Military members often have adjustments in pay that must be accounted for which have a great impact on support of military members and their spouses. This can lead to trouble paying support after a loss of basic allowance for housing (BAH) or active duty pay. It is very important that your divorce attorney understands the various elements of a military member’s pay and anticipate what can happen.
Support. All military members must provide support for the non-military spouse if ordered, and child support based upon numerous financial factors. If they fail to do so, their wages can be garnished.
- Child support. The amount of child support in a military divorce is determined by California law based on certain set guidelines and schedules. It is essential that the court and all parties understand the various parts of a service member’s pay because these amounts commonly change based on deployments, base transfers, and other changes that can occur.
- Alimony. Alimony, or spousal maintenance, is the payment from one spouse to the other to help the receiving spouse look for a job, fine tune work skills or stay at home with the couple’s small children. Alimony is not automatic and depends on many financial factors, such as each spouse’s earning capacity and marriage circumstances, such as length of the marriage. It is generally awarded for a specific length of time and ends upon remarriage of the receiving spouse.
It is important to note that pursuant to garnishment for child support, alimony and property division under the USFSPA, the total amount payable cannot exceed 65% of a military member’s disposable retired pay.
Continuing benefits. Under the USFSPA, a former military spouse under certain circumstances, (such as a 20 year marriage) may be eligible for full medical, commissary and exchange privileges. However, if he or she remarries, benefits are terminated. These benefits may be revived if that marriage ends in divorce. Obtaining these types of benefits are very important and can increase greatly depending on a member’s years of service.
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