How does a military divorce differ from a civilian divorce?

With so many military personnel in parts of California, divorce in which one spouse is with the military is not uncommon. This creates a fair amount of complications involving support orders and especially child custody.

By Roy Doppelt
April 08, 2009
 
CA FAQ/Legal Issues

In San Diego County, many spouses divorce with either one or both in the military, as there is a large military segment of the population. In family law court, there is no difference between a military divorce and a civilian divorce; however, the military has different rules regarding support orders and often makes a "support order" without a hearing in either a military or family law court, and this is done administratively.

One issue that does arise in family law court more often with military spouses is the issue of deployment for several months or even more than one year. This has the effect, many times, of modifying custody and visitation orders and also on child support, since one of the factors of child support includes the percentage of custody and visitation. There are also cases in which both spouses are deployed simultaneously, and this creates a third party having legal custody. Many times, in the case of a military spouse who is the primary physical custodian, the deployment creates a change of circumstance so, upon their return, the court does not automatically reinstate the previous order pre-deployment. It is crucial for the deployed spouse, whether the custody and visitation or the child support was modified, to file a motion for modification immediately upon return, since the court's jurisdiction to modify child support is only retroactive to the date of filing and the hearing can take one to two months to calendar, depending on how busy the court is.

The other significant difference is in proceeding by default. In a civilian divorce, there is no right to a court appointed attorney under the Soldier's and Sailor's Relief Act; however, there is this right when a military spouse is deployed and not released for civilian litigation purposes and serving in the military as part of our national defense.

Needless to say, these cases can become very complicated, and an experienced attorney can advise military spouses as to their rights and potential remedies under the law.


Roy Doppelt practices family law in San Diego with Pinkerton, Doppelt & Associates.

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April 08, 2009

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