Military Divorce Versus Traditional Divorce In California: What You Need To Know

When it comes to divorce in California, there is not a separate legal process or set of procedures for a military divorce compared to a traditional civilian divorce. However, a military divorce, defined as a divorce where one or both spouses are serving in the military, has some unique rules that may apply and could affect both the divorce timeframe and final outcome.

Residency Requirements Differ For A Military Divorce
With a traditional California divorce, at least one spouse must have been a resident of the state for six months and a resident of the county where the divorce is filed for three months.

For a military divorce, the Servicemembers Civil Relief Act (SCRA) allows the military spouse to establish residency in California if they are stationed in the state, or maintain their legal residence in their home state. This means that they might not have to meet California's typical residency requirements to file for divorce.

Also, the Military Spouse Residence Relief Act (MSRRA) allows a civilian spouse to claim the same state of legal residence as the military spouse for purposes of divorce.

Division Of Military Pensions
California is a community property state, which means that military retirement benefits earned during the marriage may be subject to division between spouses, even if only one spouse served in the military.

The Uniformed Services Former Spouse Protection Act (USFSPA) is a federal law that provides a framework for the division of military pensions in divorce. It allows state courts to treat military retirement pay as property rather than just income. Under the USFSPA, a former spouse can receive a portion of the service member's retirement pay as part of the divorce settlement.

To be eligible to receive direct payments from the Defense Finance and Accounting Service (DFAS), which manages military pension payments, the former spouse must meet the “10/10” rule. This rule requires that the military service member has completed at least 10 years of creditable military service during the marriage, and the marriage has overlapped with at least 10 years of military service creditable toward retirement.

What Happens If A Military Spouse Is Deployed?
The SCRA protects active duty service members from civil judicial proceedings. This allows service members to focus on their military duties without risking negative legal consequences, or being unfairly disadvantaged in court. The SCRA allows for a stay or delay of proceedings for 90 days or longer, depending upon circumstances, if the service member’s military duties affect their ability to participate in legal proceedings.

While the SCRA is designed to protect members of the military during the performance of their duties, it can significantly impact the timeframe of a divorce due to difficulties serving the other party and legally requested delays.

Although military and traditional divorce proceedings are very similar, there are some significant differences that require expertise to navigate. The family law attorneys at Smith Law Group are highly experienced with both traditional and military divorces. If you are contemplating divorce please reach out to us. We are always here to help!