How Deployment Affects Military Divorce in California

A military divorce is a divorce in which one or both parties are current or former military service members. Deployment or working out of state is a common occurrence for many military service members, and it can greatly impact the military divorce process.

How Military Divorces Differ from Civilian Divorces 

While both military and civilian divorces essentially come to the same result, the ending of a marriage, the military divorce process can be much more complicated and take longer than a civilian divorce. This is because military divorces are governed by both the laws of the state where you legally reside and additional federal laws such as the Federal Service members Civil Relief Act of 2003 (“SCRA”) and the Uniformed Services Former Spouse Protection Act (“USFSPA”).

• The SCRA protects service members rights by allowing postponement of the divorce process or protection from default judgments if the service member is unavailable or unable to respond due to his or her military service.
• The USFSPA recognizes the right of state courts to distribute military retired pay to a spouse or former spouse and provides eligible spouses or former spouses a method of enforcing these orders through the Department of Defense. 

While there is no exact answer to the question of how long a military divorce takes compared to a civilian divorce, military divorces can often take longer. An uncontested civilian divorce can take as little as 6 months to complete, whereas a contested civilian divorce often takes 12 months or more.

Due to the complicated nature of a military divorce, an uncontested divorce can also take as little as 6 months, but a contested military divorce can often take more than 24 months, particularly where one of the parties is a service member on deployment at the beginning of the case, or is deployed while the case is pending.

It can also be complicated to know which state is the appropriate state to file a Petition for Dissolution of a military marriage. Military families may need to relocate frequently to different states, or sometimes to different countries.

However, the state in which the military family is living may not be where the service member or the civilian spouse has legal residency because the SCRA allows service members to retain their home state as their legal residence, rather than the state that is their duty station.

Protections & Allowances for Deployed Spouses

There are numerous federal legal protections and allowances that are permitted for deployed spouses going through the divorce process.

Federal Servicemembers Civil Relief Act of 2003 (“SCRA”)

The SCRA provides protection for service members against entry of default judgments due to a nonresponse or an inability to attend court proceedings due to active service. The SCRA can provide for a stay of civil proceedings while the service member is deployed.

For example, in a Navy divorce, if the service member is deployed on a ship for an extended operation, the service member could be away for 6 to 9 months, or longer. During this time, the Court may apply the SCRA to stay, or put a hold on all hearings for at least 90 days upon certain findings, or upon the request of the service member, a hold could be in place until after the service member is back in her or his home port.

If a civilian spouse files for dissolution of marriage while the service member is deployed, the SCRA prevents a default judgment from being entered against him or her until after an attorney has been appointed to represent them. If a default judgment is somehow entered against a service member, the SCRA provides remedies for the service member to set aside the default judgment.

Uniformed Services Former Spouse Protection Act (“USFSPA”).

The USFSPA sets forth what benefits, rights, and protections civilian spouses may be entitled to under federal laws. These include:

1. Continued Health Insurance Coverage 

   In a Navy legal divorce, a civilian spouse may be entitled to continued health insurance coverage under the “20/20/20 rule,” which provides an eligible former spouse with continued Tricare coverage if the marriage was for at least 20 years, the service member has at least twenty years of credible service, and at least 20 years of the marriage overlapped with the military spouse's time in service. 
   
   A civilian spouse may be entitled to limited health insurance coverage under the “20/20/15 rule,” which provides an eligible former spouse with limited Tricare coverage if the marriage was for at least 20 years, the service member has at least 20 years of credible service, and at least fifteen years of the marriage overlapped with the military spouse's time in service.
   
   

2. Survivor Benefit Plan Election

   A former spouse may also be eligible for a monthly payment, or annuity, if the service member dies on active duty or after retirement. There are complex eligibility and timing requirements to allow an eligible former spouse to apply for a Survivor Benefit Plan Election that an attorney can guide the civilian spouse through.
   
   

3. Support

   When child support or spousal support is at issue, although basic housing allowance (“BAH”) and basic allowance for subsistence (“BAS”) are paid directly to the service member, those payments can be considered income available for child support or spousal support that is paid to the civilian spouse. 
   
   

4. Retirement

   Military retirement pay may be treated as community property subject to division in a divorce, and the civilian spouse may be eligible to receive their portion of the military retirement directly from DFAS under the “10/10 rule,” which allows a former civilian spouse to payment through DFAS if at least ten years of the marriage overlapped at least ten years of the service member’s military service. If the “10/10 rule” is not met, the civilian former spouse must receive their portion of the retirement directly from the service member.

Tips for Navigating Divorce During Deployment

Whether you are a service member or a civilian spouse with military divorce questions, here are some answers to help you prepare and navigate the sometimes complicated and confusing military divorce process during deployment.

You Can Start or Delay While Deployed 

The Servicemembers Civil Relief Act of 2003 provides deployed service members with the ability to delay divorce response/proceedings while they are actively deployed. The Court on its own motion, or a service member upon request, can delay having to file a Response to a Petition for Dissolution for up to 90 days.

A service member can also request a stay of the military divorce process while they are actively deployed. A service member can also request a delay of proceedings for up to 60 days after returning from deployment.

Don’t Wait to Secure a Military Divorce Lawyer

If you are a service member on deployment, or if you are anticipating being sent out on a deployment, even though you can delay the divorce process, that does not mean you should delay getting a military divorce lawyer to help you through the military divorce process.

California military divorce lawyers can help protect your rights throughout the divorce process while you’re deployed. A California military lawyer may also be able to help facilitate and coordinate divorce proceedings, and thus ensure a smooth transition during your military leave of absence, or upon your return home.

Understand Your Military Benefits

It is important for both the service member spouse and the civilian spouse to understand how a divorce will impact your military benefits. With regard to military retirement benefits, the USFSPA does not guarantee a former spouse a portion of the military member’s retirement funds.

However, if a civilian spouse is entitled to a portion of the military retirement benefits and there is an award pursuant to a divorce, then they may be eligible to receive their portion of the military retirement directly from DFAS.

With regard to military benefits, although military health coverage benefits may continue for eligible civilian spouses after the divorce is finalized, benefits for both spouses will still apply before the divorce is finalized. Also, a service member’s BAH may change once the military divorce is finalized, and this may impact the amount of income available for military spousal support. For example, the service member may begin receiving BAH for a single person once the divorce is finalized.

The BAH amount for a single person will likely be a lesser amount than the service member was receiving while they were married. If the service member is receiving less in BAH, it could cause a prior child support order, or a prior spousal support order, to be reduced by the Court due to the reduction in the amount of BAH received by the service member.

Consider All Custody Options

Military service, particularly a deployment, can impact custody and visitation orders. If only one spouse is deployed, that does not necessarily mean that custody defaults to the at-home parent. The deployed spouse may be able to appoint a family member to take their place in joint custody arrangements, allowing family members to have visitation with the children, while the service member is deployed.

In California, if there is a pending military divorce with children, a deployed spouse has additional protections to maintain their custodial rights under California law. Family Code Section 3047 provides that if military service has an impact on a service member’s ability to exercise custody or visitation rights, that is not enough reason to make a permanent change to custody orders.

Any orders made to cover the time a service member is away on deployment are temporary orders, and upon the service member’s return from deployment, the custody or visitation orders are to revert to what the orders were prior to the deployment unless the party opposing reversion of the order makes proves that reversion to the prior orders is not in the best interest of the child.

Also, while the service member is deployed, the Court can make orders for “virtual visitation” through phone calls, or video calls, to allow the deployed service member to maintain frequent and continuing contact with their children.

The intent of Family Code section 3047, as set forth by the California legislature is to “ensure that parties who serve in the military are not penalized for their service by a delay in appropriate access to their children.”

Use Mediation to Come to a Joint Agreement

Engaging in divorce mediation can help smooth the divorce process while a service member is deployed. Many people mistakenly assume that divorces cannot be finalized while deployed unless the deployed service member is able to return home to appear in court to litigate divorce issues. However, a divorce by mediation, rather than by litigation, can eliminate the need for court appearances if both sides are able to unanimously agree on terms for settlement of all issues.

Don’t Let Deployment Disrupt Your Divorce

Navigating state laws, federal laws, and military requirements that apply to a military divorce can be complicated, confusing, and time consuming. Certain benefits may be lost if not timely requested and applied for.

Whether you are considering a military divorce, or in the process of a military divorce, the attorneys at Cage & Miles can help guide you through the process, and help you determine whether your case is more appropriate for mediation, or for litigation.

Contact Cage & Miles today to schedule a consultation regarding your military divorce.