Last year, the military divorce rate dropped to the lowest it has been since 2005. The divorce rate for officers and other members of the military was only 3.1%. This figure includes both enlisted men and women. In context, the rate of divorce for the general public is 3.6 per 1000 people.
While the divorce rate tends to be lower for people in the military, having a spouse in the military or serving in the military yourself can have a significant impact on a potential divorce proceeding. There are many statutes that apply in family law matters that can alter your court case if you or your spouse is in the military. Below are some of the issues that face military personnel when they are involved in family court disputes.
Military Presence in California
California has the largest population of any state in the United States, and understandably has an incredibly large amount of members of the Armed Services that live within the state’s borders. There are 168,820 active-duty military and 61,986 military civilians in the State of California. This does not include members of the military who are currently serving our country overseas. This number also does not include the countless number of retired veterans and military spouses that live in California.
The Servicemembers Civil Relief Act: Unique Protections for California’s Military Members
Divorce is not a simple process for anyone to go through, but if you or your spouse is in the military, your divorce may have additional complications. California is a no-fault divorce state, meaning that a spouse does not have to show the other spouse did something wrong in order to file for divorce. A civilian divorce and a military divorce will often both arise out of the same marital problems such as a lack of communication, fundamental differences, or a general loss of interest. The specific reason behind an individual wanting a divorce is usually not important in California.
While the divorce grounds of irreconcilable differences and permanent legal incapacity remain the same between civilian and military divorces, the timeline is somewhat different when an individual is seeking a military divorce. California law provides certain protections to members of the military and their spouses under what is known as the Servicemembers Civil Relief Act. This act was passed in 2003 and was formerly known as the Soldier and Sailors Civil Relief Act. This act gives protection to all people who are members of the Armed Forces, including the National Guard. Surprisingly, the act also includes certain members of the Public Health Service and the National Oceanic and Atmospheric Administration. The act only applies to persons who are on active duty. Its purpose is to allow members of the military focus on service and prevent worry about judicial proceedings while they are abroad.
In California and around the country, this act protects active-duty members of the military by postponing divorce proceedings. If a spouse in California wants a divorce from a partner who is in the military, the spouse who wants a divorce cannot give the military spouse divorce papers while he or she is on duty. A spouse who’s seeking a divorce is also prevented from giving a military spouse divorce papers within 60 days of that spouse returning from duty. This law prevents civilian spouses from claiming abandonment or desertion because the spouse is on a tour of duty and gives the military spouse a chance to readjust to civilian life.
California Residency Requirements for Divorce
To meet California’s military divorce requirements, you or your spouse must reside in the state of California. For purposes of California’s divorce law, this includes being stationed at one of California’s many military bases. This residency requirement prevents individuals from another state from moving to California just to obtain a divorce.
Getting Jurisdiction Over a Military Spouse
If you are a spouse in the military living in the United States, it is easier for a court to make this person part of the court proceedings. Usually, your spouse can be given divorce papers in the same manner that someone who is not in the military would receive them. It may become a little more complicated if your spouse is serving in the military overseas because not all foreign law is the same when it comes to service of process.
Dividing Property in a Military Divorce
For members of the military, the Servicemembers Civil Relief Act provides protections at the beginning of divorce proceedings. Members of the military do not just enjoy protections in the beginning process of their divorce, but also throughout the entire divorce process. While it is true that normal property division laws will often apply in the case of a military divorce, there are some types of property that fall under specific military law. In particular, military retirement benefits receive special treatment under federal law.
Uniformed Services Former Spouses’ Protection Act
California recognizes the Uniformed Services Former Protection Act. The purpose of this law is to allow state courts to distribute the benefits of a retired military member to their former spouse. This case came from a Supreme Court decision that prevented the division of military benefits in a divorce proceeding. The United States Congress responded with this act to allow states to decide whether or not military benefits could be divided. This law does not guarantee that a former spouse will be given military retirement benefits. Rather, the former non-military spouse must be awarded benefits in a final court order. These final orders are capable of being enforced by the Department of Defense.
Spousal and Child Support in a Military Divorce
Spousal support or child support are both common issues in traditional divorce proceedings. Unsurprisingly, issues of support also affect military couples in their divorces. California and federal law create limits on the amount of income a military spouse will be made to pay in support payments. If an individual is not supporting a spouse or a child, 60% of that individual’s income will be able to go to support payments. This number is reduced if the military member has any dependents.
Child Custody and the Military
If you or your spouse is in the military and you have split custody of a child, a deployment can cause obvious problems for custody and visitation. An experienced family law attorney can help you develop a family care plan that will describe who will care for children in case of a deployment, including who will make medical, educational, and financial decisions. Each branch of the military has their members sign a form that acknowledges that they were counseled on the importance of creating a family care plan. An example of the form used by the United States Army can be found here.
Many states are striving to ensure that a deployment does not determine a child custody decision. California has joined the ranks of these states. California Family Code 3047 was passed to protect custody rights of those in the Armed Services. What this law does is establishes a presumption that a spouse that was deployed and initially had custody of a child gets to regain custody of the child upon returning from deployment.