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Military Divorce in California

 

Residents of California can divorce someone within the military even if that party doesn't agree. However, there are a few things to be aware of that are unique to military divorces.

If one or both spouses are in the military, the petitioner can file divorce papers where the service member is stationed or in the state where they currently reside, usually at the county courthouse. If you want to file for divorce in California, one of you must live or have a station in the state. It's usually better for the non-military spouse to file where they reside, as servicemembers move around often.

Some military divorces move smoothly, just like a standard divorce. But others come with delays and red tape. Complicated cases might require legal help from lawyers who are experienced in divorces like this. 

What are the grounds for a military divorce in California?

The state of California allows couples to cite one of two reasons when filing for a divorce. You're required to determine which is right for you when you create the divorce papers. 

The two reasons are as follows:

  • Irreconcilable difference: The marriage has broken and irreparable. 
  • Legal incapacity: One person is permanently, legally incapacitated and unable to make decisions.

Where do you file a military divorce case in California?

If you want to file for divorce in California, one of you must either reside in or have a station in the state. California law only requires one party in a divorce to meet residency requirements. In general, it's best for the person filing the documents to meet these rules. 

One person in the couple must fit these criteria:

  • Be a California resident for the past six months (at least)
  • Live in the county in which the case is filed for the past three months (at least)

It's tempting to use the serviceperson's residence to prove eligibility, but it can be difficult. Military families move about every three years, but some move much more frequently. And some military members don't (or can't) tell their spouses where they are. If you use their California status to file, it could change or be incorrect. 

If you meet these eligibility requirements, you can file in the California county where you live regardless of where your spouse might be at the moment. 

 

How to file for a military divorce: A summary 

Military divorce involves the same steps used in a conventional version. You'll complete them sequentially. 

The steps include the following:

  • Filing: One person files the proper documents with the California courts. 
  • Sharing financial data: The same person fills out paperwork about assets and debts, and they're shared within 60 days. 
  • Collaborating: Your partner fills out the same set of documents and shares them with the filing party. Together, you determine if you can agree on the terms of the divorce. If you can't, you head to a courtroom. 
  • Finalizing: You create and sign final documents, or the judge does this for you at the end of your hearing or case. 

Forms needed to start a military divorce

Three small, simple forms kick off the military divorce process in California. You can fill them out alone or with the help of a lawyer. 

The three forms include the following:

  •  Petition — Marriage/Domestic Partnership (FL-100): You petition your partner to end your marriage. 
  •  Summons (Family Law) (FL-110): You ask your partner to respond to the papers and outline what happens if they don't.
  •  Proof of Service of Summons (Family Law — Uniform Parentage — Custody and Support) (FL-115): You don't fill this out, but you need a copy. It proves that your partner was given the two documents listed above in a legal manner. 

You're required to share financial data (mandatory financial disclosures) with your partner within 60 days of filing for divorce. You must provide those documents legally, which means serving them. 

As we'll discuss below, it can be difficult to serve some military members with documents. You could opt to send these financial pieces at the same time as your starting documents. 

The financial documents include the following:

  • Declaration of Disclosure (FL-140): This cover sheet outlines the documents you're sharing with your partner. 
  • Income and Expense Declaration (FL-150): Offer information about your income, and attach two months of supporting paperwork. 
  • Schedule of Assets and Debts or a Property Declaration (FL-142 or FL-160): Use either of these forms to provide data about the debts you owe and the property you own as a couple. 
  • Optional, Property Declaration (FL-160): If you need more space than allowed on the prior forms, use this document.  

A step-by-step guide to serving papers

Serving papers means providing documents to the partner via a legal method. Several steps are involved, and they’re complicated when your spouse is serving in the military. Here’s what you need to know:

1. Find your spouse

To serve someone with papers, you must know where they are. It's difficult to find military members due to the protections enacted after 9/11. Some military branches won't tell anyone where service members are, even when asked to do so.

Start with the last known address or deployment area and work forward. You might need a lawyer to help with this step.

2. Gather your paperwork

We’ve already outlined what documents you need to file for a military divorce. Once you’ve filled them out and filed them, you’ll get official copies to share with your partner.

3. Pick a server

That method involves asking someone older than 18 who is not part of your case to hand the other person the documents.

Some lawyers work with contractors to serve military members. They know how to work within the system, find out where your partner is, and how to serve them. If you have no idea where to serve this person, hiring an expert could be smart.

Your server should deliver paperwork to your spouse, and that method can look different depending on where your spouse is. For example, if your spouse is serving in California, things will look very different than the steps you’d use to serve someone serving in Italy.

Stay in close contact with your server to make sure the documents have been handed off.

5. File proof

A server signs an official document that you must file with your paperwork. If you don't get a server's signature, your divorce can't move forward.

When the service is complete and the form has been signed, take it back to your courthouse to file it.

After you serve papers, you must wait for a response from your spouse, and in a typical divorce, it's due in 30 days. A military time frame could be very different.

If your partner asks for a deadline extension, you’ll be notified of that. Your paperwork can’t just hang out there with no response at all.

What issues must you agree on?

When your partner responds to your paperwork, you start negotiating to end your marriage. Together, you have several issues to settle, such as these:

Child care and custody 

Couples with children must decide where the kids will live, when they will visit the other party, and who can make decisions for those children. 

These two forms start the conversation with your spouse:

  • Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL-105): Identify the children you share and will discuss during your divorce.  
  • Optional, Child Custody and Visitation (Parenting Time) Application Attachment. (FL-311): If you already have an understanding with your partner about child custody, use this form. 

Child and spousal support

Couples with children need to determine how they'll be financially assisted. Child support payments make that possible, and couples can determine how much one party pays the other and on what schedule. 

All couples, even those without children, might determine one partner deserves payments to support a lifestyle that's become expected. These spousal support payments should be arranged during the divorce. 

Some couples use a military member's salary as part of spousal support payments. Others look into military pensions. California can divide military pensions if both parties are state residents. 

Debt and assets

Fees couples rack up during their marriage could be split equally or via another method. Assets like property and physical items like computers can also be split between the two. 

It can be difficult to determine how to split debts and assets. The more you collaborate with your partner on these items, the better. 

Laws that can complicate a military divorce

Any divorce can be drawn out and hard to resolve. However, military divorces can be even more complex than their civilian counterparts. The following two pieces of legislation play an important role in most military divorces:

Servicemembers Civil Relief Act (SCRA)

The Servicemembers Civil Relief Act (SCRA) offers legal protections to people serving in the Army, Marine Corps, Navy, Air Force, and Coast Guard. It also applies to reservists when they’re on active duty.

In a traditional divorce, one person could ask for a default judgment. If you’re sent paperwork and don’t respond to it, the other party could move the case forward without your input. Per the SCRA, this isn’t possible for people serving.

Per the SCRA, the court can’t enter a default judgment until it appoints an attorney to represent you. The court can also delay proceedings for at least 90 days while you’re on duty.

Uniformed Services Former Spouses’ Protection Act (USFSPA)

The Uniformed Services Former Spouses’ Protection Act (USFSPA) stemmed from a court case in the 1980s. Divorcing people wanted clarity on whether retirement benefits accrued during marriage should be subject to division on divorce. The courts ruled that those benefits should be part of the family’s estate and subject to splitting.

Per the USFSPA, state courts can treat military retirement funds as they would any other marital property. The appropriate government agency can make those payments directly under certain conditions.

These rights aren’t automatic. The payments must be court-ordered, and they can’t be applied unless the parties meet a specific requirement.

Under USFSPA, the retirement benefits can only be shared when the people were married for at least 10 years, during which time the member performed at least 10 years of creditable service. If the marriage was too short or the service time was too short, the retirement benefits are protected and not divided in divorce.

How long does it take to get a military divorce?

People serving in the military are protected against lawsuits and other legal issues while they're serving their countries. These protections could delay your divorce. Military members on active duty can delay their proceedings throughout their active time, and they can delay it for up to 60 days after it ends. 

Finding the person to serve papers can also take time. If you struggle to locate the person, this adds time to your overall timeline. too. 

Do your best to shorten the timeline by doing the following:

  • Find your spouse as quickly as possible and via any means necessary.
  • Work proactively to come to an agreement with your spouse.
  • Agree to terms that work for you rather than trying to get revenge.

How much does it cost?

Filing paperwork costs between $435 and $450. If you must hire someone to help you serve papers or negotiate with your partner, you will pay more. If you cannot afford the filing fee, you can apply for a waiver.

Longer court cases involving difficult details and arguing partners take longer and are more expensive. Simplifying the process could help you to save money on the case.

But divorces are legal agreements that come with plenty of consequences. Rushing the process to save money now could lead to regrets later. 

Main differences between civilian and military divorces 

All divorces involve ending a marriage. But civilian and military divorces do come with a few critical differences. 

The two differences involve the following:

  • Difficulty: It can be harder to work with someone serving in the military. It may be difficult to know where they are, and the delays can make it harder to come to terms. 
  • Time frames: Military divorces can take longer due to serving issues and delays requested by the other party. 
Watch: How to Get a Divorce in California

 

References

Divorce in California. Judicial Branch of California. 
Why Do Military Families Move So Much? Armed Services YMCA. 
Getting a Divorce in California? Judicial Branch of California. 
The Military Divorce Handbook. American Bar Association. 
Start a Divorce Case: What's Next? Judicial Branch of California. 
Divorcing the Military Spouse. American Bar Association.
The Servicemembers Civil Relief Act (SCRA). Consumer Financial Protection Bureau.
A Basic Guide to Uniformed Services Former Spouse’s Protection Act. (September 2015). U.S. Army.
ABOUT THE AUTHOR
Divorce Specialists
After spending years in toxic and broken family law courts, and seeing that no one wins when “lawyer up,” we knew there was an opportunity to do and be better. We created Hello Divorce to the divorce process easier, affordable, and completely online. Our guiding principles are to make sure both spouses feel heard, supported, and set up for success as they move into their next chapter in life.