October 10, 2014 By Paul Wallin

Dealing with family issues in a courtroom can be extremely stressful. Imagine having to deal with those issues while also dealing with the stresses of being a deployed military member. In light of the difficulties associated with dealing with family related legal matters, the California legislature has certain protections in place for military members. These protections offer military members different ways to resolve their family legal issues considering the various difficulties posed by being an active military member.

Child Custody and Visitation Hearings

Military and child custody
California law and active military members

Many states lack specific protections for military members in regards to child custody and visitation determination proceedings. California law accounts for the fact that military members may need special protections with regard to child custody hearings, especially when they are unavailable to attend hearings due to deployment. Family Code Section 3047 states that if a party with physical or legal custody of a child or visitation receives temporary deployment or mobilization orders from the military that would require the party to move a substantial distance from his or her residence or would have a material effect on the ability of the party to exercise custody or visitation over the child(ren), temporary custody orders can be made. However, these orders are subject to review and reconsideration upon the return of the party from military deployment or temporary duty.

Additionally, according to section 3047 subsection (b)(3)(A) of the Family Code, if the court does make a temporary child custody order in the absence of the temporarily unavailable military member, the court must consider appropriate orders to ensure that the service member can maintain frequent and continuing contact with the child by means that are reasonably available.

Divorce Procedures for Military Members

Divorce proceedings may also differ for those who are military members and those who are divorcing military members. According to Section 2320 of the Family Code, one can only file for divorce in the state of California if: one party of the divorce has been a resident of the state of California for at least six (6) months and a resident of the county in which they are filing for at least three (3) months. In order to get a divorce in the state of California, the spouse wishing to get the divorce must file a petition for dissolution with a county superior court.

California Requires Service of Lawsuit

One rule that requires close attention is the rule for service in California divorce proceedings. “Service” is the process of delivering paperwork regarding the initiation of a legal action to the opposing party of the action. Family Code Section 2331 requires that a copy of the petition and summons be served upon the other party to the marriage in the same manner as service of papers in civil actions. Thus, the California Family Code requires that the spouse who is filing for divorce serve the other spouse, regardless of where the other spouse may be.

Serving a spouse who is deployed can be a difficult task. While California law requires that spouses who are deployed be served, a federal act exists to make sure that spouses who are deployed and impossible to reach do not lose lawsuits simply because they are unreachable.

Special Protections for Military in Divorce Proceedings Under the Service Members Civil Relief Act

Under the Service members Civil Relief Act, military members are given certain rights in civil court cases (the Act does not offer any protections in criminal cases). The purposes of the Service Members Civil Relief Act are to enable service members to focus on the defense needs of the country and to provide them with temporary suspension of judicial proceedings that may affect their rights while they are serving the country.

The act extends relief to all Army, Air Force, Coast Guard, Marine Corps, and Navy service members on active duty, including reservists, members of the National Guard and Air National Guard who have been activated for duty, and active-service commissioned officers of the Public Health Service and National Oceanic and Atmospheric Administration.

The Act prevents the military spouse who cannot respond to his divorce action from being held in default when the circumstances of deployment prevent him or her from doing so. Being held in default means that the court will simply issue a ruling in favor of the person who has filed the paperwork because of a failure to respond or appear by the other party. The Act prevents this from happening and ensures that deployed military members are not denied the opportunity to be heard in the court of law simply because they are serving the country.

Division of Marital Property of Military Members and their Spouses

In addition to having certain protections in child custody and visitation hearings as well as divorce proceedings, military members and their spouses are subject to some different rules regarding the division of marital property.

Along with the standard California property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA). The law sets rules as to how military retirement benefits are calculated and divided in the event of dissolution of the marriage. The USFSPA authorizes a direct payment of a portion of a military retiree’s pay to the former spouse. However, federal laws will not divide and distribute any of the military members’ retirement to the spouse unless they have been married for at least ten (10) years while the member was an active duty military member.

Call Wallin & Klarich Today

At Wallin & Klarich, we understand the difficulty of family issues when military members are involved.  We know how difficult it can be to figure out your divorce, especially when the laws may be confusing. For these reasons, it is crucial that you seek the assistance of an experienced family law attorney immediately. Our knowledgeable attorneys at Wallin & Klarich have over 30 years of experience successfully helping our clients with family law matters. Let us help you today.

With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, our knowledgeable attorneys are available to help you no matter where you are located.

Call us today at (888) 749-7428 for a free phone consultation. We will get through this together.

[1] Cal Fam Code § 3047(b)(1)

[2] Cal Fam Code § 3047(b)(3)(A)

[3] Cal Fam Code § 2320

[4] Cal Fam Code § 2331

[5] 50 U.S.C. App. § 502.

[6] 10 U.S.C. 1408

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