If you or your spouse files for divorce while either of you is deployed, you should talk to an experienced family law attorney. Waiting to hire an attorney can be detrimental to your case.
Residency Requirements and Other Restrictive Rules
You have the choice of filing:
- in the state where you live,
- in the state where the military spouse is stationed (if he or she is in the U.S.), or
- if he or she is deployed, in the state where the military spouse claims legal residence.
States have different requirements as to rules for waiting periods, division of property, and child custody.
If you have been a resident of California for 6 months and a resident of your county for at least 3 months, you can file a divorce petition in your county’s superior court.1 If you have not met the residency requirements, you can file for legal separation. Later, you can amend the petition after you have met the residency requirements. The non-filing spouse must notify the other spouse, even if the other spouse is stationed outside the state where the divorce filing takes place.
If you have children, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is federal law, holds that the only state that can determine the custody arrangements in your divorce is the state where your children have lived for 6 months before you file.2
A Deployed Spouse Can Delay a Divorce for 90 Days or Longer
The Service Members’ Civil Relief Act (SCRA) is a federal law that allows active duty service members to stay, or delay, a divorce for 90 days or longer.3 The service member can state his or her service, especially overseas service, prevents them from participating in the proceeding. The service member can delay the proceeding until the day that he or she returns, plus an extra 60 days. A service member can waive his or her rights under the SCRA to allow the divorce to proceed. SCRA does not prevent state courts from issuing temporary orders as to spousal support (alimony) and child support while a divorce is pending.
4 Tips for Serving Your Spouse
- If your spouse lives off-base, you can serve him or her in person or by mail.
- If your spouse lives on-base, you can:
- Contact base officials as well as a process server or sheriff’s deputy to assist with delivery. Be aware that a commanding officer is not required to serve a service member if the service member doesn’t want to be served.
- Check to see if your spouse’s facility can receive certified mail or process a return receipt. The office of the base commander or base operations manager should know this information. If yes, you should be able to serve your spouse by certified mail with return receipt to their Army or Fleet post office address.
- The court can appoint an active duty, reserve, or civilian natural person as an officer of the court to serve the papers.
Serving your spouse is more of a problem on ships or shore base, because such action violates military regulations. Serving your spouse in the territorial jurisdiction of another foreign nation could violate the Hague Convention.
Call the Divorce Attorneys at Wallin & Klarich
If you are considering divorce, contact an experienced divorce attorney from Wallin & Klarich immediately. Our attorneys have over 30 years of experience in successfully representing clients in child custody and divorce cases. Our offices are located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. Call us today at (888) 749-7428 for a free phone consultation. We will help you reach the best possible resolution in your case.
1. Calif. Family Code § 2320.↩
2. UCCJEA § 102 (7).↩
3. 50 U.S.C. App. §§ 501-597b.↩