Civilian divorces are generally governed by state law. However, federal law comes into play where one or both spouses is a member of the military. Whether you are the service member or non-service member spouse, it is important to understand how federal law impacts your divorce before filing for divorce or responding to your spouse’s divorce petition.
Many of these special considerations for military divorces are included in the protections afforded via the Servicemember’s Civil Relief Act (SCRA). As addressed here, some of these protections are directly related to determining a service member’s residency for purposes of the dissolution proceedings and division of the military retirement benefits.
While not at all a comprehensive list, here are six tips for the start of a military divorce.
To file for divorce in California, at least one of the spouses must be a resident of California for at least six (6) months before filing for divorce. A service member’s residency is not determined by their mere presence in the state.
This is because the SCRA allows military members to maintain their residency in one state, despite being stationed in another state. This means that, pursuant to the SCRA, California does not have jurisdiction over a service member merely because he or she is stationed in California.
It is therefore important to determine if California has jurisdiction over the military member by looking at additional factors that are typically indicative of residency.
Some of these factors include the following:
Where was the service member was born and raised?
Where did the service member enlist?
Where does the service member file state taxes?
Where is the service member registered to vote?
Which state issued the service member’s drivers’ license?
As stated above, filing for divorce in California only requires one spouse to have California residency. This means that even if the military spouse is not a California resident, the non-military spouse may still file in California if he or she is a California resident.
However, there are potential implications surrounding the service member’s retirement benefits if the divorce proceeds in California if the service member spouse is not a California resident. A further discussion on the interplay between jurisdiction and military retirement is addressed in tips 2 through 4.
Once you have decided that California has jurisdiction over the divorce, the next step is to determine if California has jurisdiction to divide the service member’s military retirement. California has jurisdiction to divide a military retirement when it has jurisdiction over the service member because of their residency or consent to California jurisdiction.
Residency was already discussed above. However, a service member is also able to consent to California jurisdiction over their retirement benefits even when California is not their state of domicile or residency. Consent can be obtained by the service member’s participation in the divorce process.
If the service member is not a California resident and has not consented to California jurisdiction over their retirement, they must decide whether to consent to California jurisdiction to divide their military retirement pay.
When deciding whether to consent to California jurisdiction over your military retirement benefits, you want to determine two things: (1) the state that has jurisdiction over your retirement, and (2) how that state would divide your retirement.
If the state that has jurisdiction over your military retirement divides it differently and more favorably to you than California, you would likely not want to consent to California jurisdiction. However, if the state with jurisdiction would divide it substantially the same as California, consent may be appropriate.
Until the service member spouse has completed steps 2 and 3, it is important that he or she does not inadvertently consent to California jurisdiction to divide their military retirement.
California case law continues to evolve in this area. It is therefore important to consult with a California military divorce attorney who keeps apprised of the current state of the law to best advise you before proceeding.
Whether you are the military or non-military spouse, it is important to determine if the SCRA requires you to take additional steps in your divorce proceedings.
For example, if you are the service member participating in the divorce proceedings, you have the right to request a stay in the proceedings of at least ninety (90) days. If a service member was defaulted, the SCRA also provides that the default judgment may be vacated under certain circumstances.
It is intricacies such as these that demonstrate why consulting with an attorney familiar with the SCRA and its application to California military divorces.
Military divorces are often complex due to the interplay between federal and state law. Whether you are the military spouse or non-military spouse, the filing spouse or the responding spouse, our team of military divorce attorneys at Cage & Miles, LLP can work with you to navigate the complex military divorce process. Contact our team at (858) 943-2060 today.