Need a Military Divorce Lawyer? Here’s What to Look for

Divorce in the military, whether one or both spouses are servicemembers (hereinafter referred to as a “military divorce”), can be more complicated than a divorce between two non-servicemembers (hereinafter referred to as a “civilian divorce”). Arguably one of the biggest reasons for this is the applicability of and interplay between military rules and regulations, federal laws, and California laws and rules.

For example, the Federal Servicemembers Civil Relief Act (SCRA) of 2003 and the Federal Uniformed Services Former Spouse’s Protection Act (FUSFSPA) create additional rules and requirements applicable to a military divorce that are not applicable to a civilian divorce. For example, in California, the petitioning spouse may request a default judgment against their spouse where state and local rules and requirements have been met, such as proof of proper service and no response being filed after at least 30 days from that date of service.

However, this is not true when that nonresponding spouse is an active duty servicemember. The SCRA of 2003 precludes a default judgment being entered against their active-duty military spouse where he or she has not otherwise consented to participate in the divorce process.

Additionally, the filing spouse must ensure that residency requirements are met to file in California. Pursuant to the SCRA of 2003, residency requirements are not met solely on the basis that the servicemember is stationed in California. Furthermore, even if the residency requirements are met, another issue arises regarding whether California has jurisdiction over the servicemember’s military retirement.

The FUSFSPA holds that California, or any state, does not have jurisdiction over a military pension unless the servicemember consents to California jurisdiction. This means that it is possible for California to have jurisdiction over the divorce, but not the servicemember’s pension. 

It is reasons such as these that highlight the importance of retaining an attorney who is knowledgeable in military divorces, including but not limited to military spouse benefits and the interplay between, and applicability of, California, military, and federal laws, rules, regulations, and requirements. 

Why Choosing the Right Military Divorce Lawyers Matters for Your Case

The intricacies of military divorces mean that it is important to find the right attorney for your case. In addition to the above, an attorney who is knowledgeable and experienced in military divorces will understand how to read a Leave and Earnings Statement (LES), the meaning and importance of the Basic Housing Allowance (BAH) and Basic Allowance for Subsistence (BAS), and be able to explain the rights and benefits that a non-servicemember spouse has, if any, such as those surrounding health insurance, support, and base access. 

For example, under the 20/20/20 rule, a non-servicemember spouse may keep TRICARE benefits, while eligible, so long as he or she was married to the servicemember spouse for at least 20 years, the servicemember served in the armed forces for at least 20 years, and the marriage and service period overlapped for at least 20 years.

The 20/20/15 rule holds that the non-servicemember spouse may keep TRICARE benefits for one-year post-dissolution, while eligible, so long as he or she was married to the servicemember spouse for at least 20 years, the servicemember served in the armed forces for at least 20 years, and the marriage and service period overlapped for at least 15 years. 

These are only a few examples of how civilian and military divorces differ and why it is important to find an attorney who has experience handling military divorces.

5 Things to Look for Before You Choose a Military Divorce Lawyer

In addition to choosing an attorney who is well versed in military divorces and the differences between military and civilian divorces, you must choose an attorney who is a good fit for you. This is a highly personalized decision that should not be solely based on referrals, but also a thorough consultation. The goal of this consultation should be to ensure that you are comfortable and confident with the attorney’s knowledge, experience, and ability to handle your case.

Even if the attorney has the necessary knowledge and experience, you may decide that you do not see yourself working with them, which is okay. This is why consulting with more than one attorney is a good idea.  In making the decision of whether to retain a particular attorney, there are five things that you should look for. 

1. Experience with Military Divorces

One of your first questions should be whether that attorney has experience with military divorces. While the attorney cannot give you case-specific information, they can tell you if they have represented a servicemember spouse or non-servicemember spouse, how much experience they have handling military divorces, and what issues they have dealt with when dealing with a military divorce.

As discussed herein, military divorces have additional laws, rules, and requirements that are not applicable in civilian divorces. This is why you must ensure that your prospective attorney has competently handled military divorces in his or her legal career. 

2. In-State Certifications and Practice

If your military divorce is occurring in California, your attorney must be licensed in California. You can do a simple search on the California Bar Association’s website to confirm the attorney’s licensure. This search will also show you how long the attorney has practiced in California, which may provide some insight regarding their experience with California laws and rules applicable to divorce. 

Additionally, with more than 30 military installations in California, the longer the attorney has practiced in the state, the more likely it is that he or she has military divorce experience. However, you must do your due diligence in asking those pointed questions to determine the prospective attorney’s actual knowledge and experience. 

3. Track Record of Empathy and Understanding

Someone unfamiliar with military life may not be as understanding or empathetic of the issues that both servicemember and non-servicemember spouses experience during marriage and throughout the divorce process. As a servicemember or non-servicemember spouse, you have likely experienced things that people going through civilian divorces have not, such as frequent relocations, sometimes without your family, and deployments.

Some of this may be relevant to issues such as spousal support and custody. However, even when not relevant, your attorney must recognize the fact that it is still important to you.

4. Past Client Testimonials & Referrals

It may be useful to you to review testimonials from an attorney’s former clients and consider referrals that may be provided. This does not replace the importance of a consultation but may be useful in making your decision to retain or not retain an attorney. 

5. A Detailed Understanding of Military Regulations, Laws, Benefits, and Pensions

During your consultation(s), make sure that you ask pointed questions to the prospective attorney regarding his or her experience with the military and divorcing in the military. You want to make sure that the attorney understands what benefits the non-servicemember spouse is entitled to, how a military pension is handled and how much the non-servicemember spouse is entitled to, and if they have handled issues that will likely arise in your case. 

For example, it is important to know that the attorney has handled military divorces where custody was at issue, if you have minor children with your spouse. Military divorces where there are minor children from the marriage have additional considerations that must be addressed that are generally not present in a civilian divorce, such as deploying or relocating servicemember parents.

Support, spousal and/or child, may also be an issue in your case, which means that your attorney knows how to read a LES, understands that BAH and BAS are nontaxable income, and can properly incorporate those numbers into the Dissomaster, which is the calculator San Diego courts used to determine guideline child support and temporary spousal support.

Let the Experts at Cage & Miles Help Take the Stress out of Military Divorce

Whether you are thinking about filing for divorce and want to know more about the process, have made the decision to file, or have been served with your spouse’s petition for divorce, it is important to find an attorney who has the knowledge and experience to provide you answers and help you through the process. 

Consider referrals and client testimonials but remember that choosing an attorney who will help you through the often difficult and emotionally taxing divorce process is a highly personalized choice. Make sure to participate in consultations with prospective attorneys and have them answer your questions regarding their knowledge, experience, and overall fit for your case.