If you or your spouse is a member of the military and you are facing divorce, it’s critical to be aware of how military divorce differs from civilian divorce. Although state law governs divorce matters, there are certain instances in which federal law can affect the divorce process when a servicemember is a party to the action. Military members who are on active duty may not be able to respond to divorce papers or participate in court proceedings while they are stationed overseas. Accordingly, there are a number of special laws that are in place to protect a servicemember’s rights in divorce — as well as specific provisions that safeguard the rights of their spouses and minor children.
Here are five things you should know about filing for divorce if your spouse is in the military:
Before a court can hear a divorce matter, it must have the jurisdiction to do so. Jurisdiction is typically determined by the place where one of the parties in the action lives. However, this can be a more complex issue when it comes to military families since they may move frequently. When it comes to military divorce, jurisdiction may be where the non-military spouse lives (provided they meet the residency requirements), where the servicemember resides, or the location where the servicemember is stationed. To file for divorce in the state of California, one of the spouses must have been a resident for at least six months and lived in the county in which they are filing for at least three months.
In any divorce case, a spouse must be personally served a summons and complaint. Serving divorce papers on a military spouse is no different than service of process for a civilian — as long as the military member resides in the United States and does not live on a military base. In these cases, personal service can be made on a military spouse by any individual over the age of 18 who is not a party to the case.
If a spouse agrees to the divorce and will accept service, there are usually no issues. But service can be more difficult if a spouse lives on a military base. Most bases will have an individual with whom you can speak with to coordinate service. A process server or sheriff who has experience serving members of the military will know what steps should be taken and how to effectuate service of process.
There are other service of process rules if your spouse is deployed overseas. You might be able to serve the papers to the Army Post Office at the military base through certified mail, return receipt requested. If this is not possible, you may be able to contact a civilian active-duty officer who can work with you to get the papers served on your spouse. Depending on the country where your spouse is deployed, service of process might also be subject to the Hague Convention and additional requirements.
In a civilian divorce, the spouse who was served divorce papers must respond within a certain amount of time. If they fail to answer or appear in the action within the applicable time frame, a judge can grant a default divorce. However, it is usually not possible to obtain a default judgment against a spouse who is on active duty. The Servicemembers’ Civil Relief Act provides default protections for military members who are currently deployed and meet certain criteria.
Courts will typically delay proceedings by 90 days at the servicemember’s request, or at its own discretion. In addition, deployed servicemembers can also request that the judge delay divorce proceedings until they return from their deployment if their ability to participate in the proceedings is “materially affected” by their duties If a default judgment was obtained while a military spouse was on active duty, the judgment may be put aside.
There are some significant differences between a military divorce and a civilian divorce. But it’s essential to understand that both follow the same legal process. Regardless of whether a spouse is in the military, a military court does not handle divorce matters. Divorce cases are governed by state law and proceedings are held in civilian state court.
While there are distinctions in divorce cases involving servicemembers, the same issues must be resolved as in a civilian divorce. These include child support, custody, alimony, and property division. Some matters specific to military divorce concern military retirement benefits and military medical benefits. Eligibility for these benefits after divorce depends on the length of the marriage and duration of the spouse’s military service.
If either you or your spouse is a member of the military, it’s vital to have the representation of an attorney who understands the legal nuances associated with a military divorce. Providing compassionate counsel and experienced advocacy, The Law Offices of Rick D. Banks has been dedicated to assisting clients throughout Fresno and the surrounding area with a wide variety of divorce and family law matters for over 20 years. To schedule a no obligation consultation, call (559) 222-4891.