Military Divorce in California – 50 U.S.C. App. Sections 501-593

Are you a military serviceman or spouse who is seeking a divorce in California? Military divorces present many special challenges.  These cases can be more complex than civilian divorces because they deal with both California and Federal law.  An experienced military divorce lawyer can guide you through the difficult issues of division of military pensions, active duty child custody issues, and the unique procedural rules associated with military divorces.  At Wallin & Klarich, our skilled military divorce attorneys represent military personnel and their spouses, as long as one of the parties currently resides in California.

We understand that a career in the military and wartime pressures can often create problems within a marriage, commonly leading to divorce. If you are facing these issues while you or your spouse are overseas in active duty, or have been recently released from duty, you are eligible for specific military protection under United States Code (50 U.S.C. App. Sections 501-593)_[i]. Call our California military divorce lawyers at Wallin and Klarich today so we can guide you through this overwhelming situation and read on to learn more about military divorce laws.

Procedural Issues with Military Divorce

While the process for a military divorce is similar to the process for civilian divorces, there are key procedural issues that need to be addressed when at least one party is an active duty member of the military.  The federal government passed the Service member’s Civil Relief Act (SCRA)_[ii] so that active military members could suspend or postpone civil actions against them, so that they can devote their full attention to their military duties.  As it applies to military divorce cases, the SCRA protects active duty military members in the following ways:

1. If a default judgment is entered against you while you are active duty military, or within thirty (30) days after you have left the service, you may be able to have the default judgment set aside;
2. If you are served with a summons while you are active duty military, you may be able to postpone the divorce proceedings for a reasonable period of time.

Due to the SCRA, if you are a civilian married to an active military member, you may have to go through a very complex process to ensure that the divorce proceedings are moving forward as efficiently as possible.  An experienced California military divorce lawyer can ensure that your case is handled appropriately from the beginning.

Default Judgments against Active Duty Military Members

A default judgment is a judgment that has been entered against a party who has failed to respond to a claim that has been made by another party.  If you are an active duty member of the military, it can be very difficult to respond to a divorce petition, especially if you are stationed overseas.  For this reason, 50 U.S.C. App. 501-593 and the SCRA provides that the party who files for the divorce must sign a written declaration of facts indicating that the other party in the case is not in a military service and has not requested a stay of the proceedings.

If your spouse has filed a divorce petition and you were unable to respond, resulting in a default judgment being entered against you, you may be able to re-open your case and have the default judgment set aside.  In order to re-open your divorce case, the following must apply to you:

1. You must show that the default judgment was entered during your military service, or within thirty (30) days after you left the service;
2. You must submit  a request to the family law court to re-open your divorce case while you are still on active duty, or within ninety (90) days of leaving the service;
3. You must not have made any appearance in court in your divorce case, prior to the default judgment being entered.  This includes filing an answer to your spouse’s petition for divorce, or actually physically appearing in court.;
4. You must prove that your military service prejudiced your ability to defend your case, and show that you have a valid defense to the action brought against you.

The procedure for re-opening a divorce case and attempting to set aside a default judgment is very complex.  You should hire an experienced military divorce attorney in California who has experience in setting aside default judgments, or you could lose your right to have your divorce case re-opened.

Postponing your Divorce Proceedings in California

If you are an active duty member of the military and you are served with a petition for divorce, you may be able to temporarily postpone or “stay” the divorce proceedings until you are able to appropriately proceed in your case, according to the SCRA.  A stay can be used to delay the entire proceeding, or a specific aspect of the proceedings.  Thus, you can make a request to stay the proceedings at any time, as long as you are active duty.  You will be able to request a stay of the proceedings for a reasonable amount of time if your request includes:

1. A letter or other communication indicating that your current military active duty status requirements affect your ability to appear in the case, along with a date that you will be able to appear; and
2. A letter or other communication from your commanding officer, stating that your status prevents you from appearing and that military leave is not permitted at the time of the letter.

It is important to note that the family courts should be willing to postpone your divorce proceedings for a set period of time under the SCRA.  It is very unlikely that the proceedings will be postponed indefinitely.  If you require an additional postponement, you can make another request to the court.  Keep in mind that it is completely in the discretion of the court to grant or deny your request for an additional postponement.  Requests to postpone divorce proceedings can be very difficult and should not be attempted without the knowledge and expertise of an experienced California military divorce lawyer.

Child Custody and Deployment in Military Divorce Cases (California Family Code Section 3047)

When making a determination with regards to child custody, the family law courts will always evaluate and try to make a court order that is in the best interest of your child.  This standard is also used in making temporary and permanent custody orders in military divorce cases.  Military divorce child custody issues differ in the way that the court evaluates modifications to child custody orders.  If you have a child custody order that grants you physical custody of your child, and you are activated to military or temporary duty, your rights will be protected so that when you return you are not deprived of custody for performing your military service.

California Family Code Section 3047_[iii] states that a parent’s absence, relocation, or failure to comply with custody and visitations orders, due to being activated to military service or temporary service shall not, by  itself, be sufficient to justify a modification of a child custody or visitation order.  This means that if you have child custody and visitation orders and you are deployed, your spouse cannot file a permanent modification to the child custody and visitation orders while you are away.  The court will implement temporary custody and visitation orders that will be in effect until you are no longer active status.  Upon your return, the orders will be returned to the way that they were before you were deployed.  Being activated to military service is not considered a change in circumstances for modification purposes.

Child custody and visitation issues can be among the most complex family law issues.  If you are an active duty member of the military, or a military spouse, you should not attempt to handle any child custody issues on your own.  You should rely on the knowledge and experience of a California child custody attorney at Wallin & Klarich to fight to obtain the best possible outcome in your case.

Division of Retired or Reserve Military Personnel Benefits – USFSPA

The Uniformed Services Former Spouses’ Protection Act (USFSPA)_[iv] recognizes the right of state courts to distribute military retirement pay and benefits to former spouses.  In order to distribute the military retirement pay and benefits, you must first obtain a court order from the family law courts.  The family law courts do not automatically distribute these benefits.  States will follow their own laws in distributing the retirement pay and benefits.  Thus, generally speaking, in California a former spouse can be awarded up to 50% of any of the retirement pay and benefits that are considered community property.  Once an order for distribution of the retirement pay and benefits has been made, the Department of Defense will oversee the enforcement of the orders so that both spouses are protected under the USFSPA.

There are several exceptions and exclusions with regards to community property and the division of property in California divorces.  Division of military retirement pay and benefits can be very confusing.  An experienced military divorce attorney in California will be able to help you by explaining your rights and ensuring that the division of property is performed in a fair manner.

Rely on the Knowledge and Experience of a California Military Divorce Lawyer

While military divorces are treated similarly to civilian divorces in many respects, there are several important differences which can often make things difficult.  Thus, it is vital that you hire an experienced family law attorney who has experience in handling military divorces.  Wallin & Klarich has been handling military divorces and other family law cases for more than 30 years.  You can rely on the experienced military divorce lawyers at Wallin & Klarich to fight to achieve the best possible outcome in your case.

With offices located in Los Angeles, Orange County, Riverside, San Bernardino, San Diego, Victorville, West Covina, Sherman Oaks, Torrance, and Ventura, there is a Wallin & Klarich family law attorney available wherever you happen to live.  To speak with an experienced California divorce lawyer today, please call us at (888) 749-7428.  We will be there when you call.

_[i] Information on 50 USC App 501-593 retrieved from http://www.roa.org/site/DocServer/SCRA_Act_text.pdf?docID=30982

_[ii] Information on SCRA retrieved from http://www.justice.gov/crt/spec_topics/military/scra.php

_[iii] Information on CA Family Law Code 3047 retrieved from http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=03001-04000&file=3040-3049

_[iv] Information on USFSPA retrieved from https://www.usafa.edu/superintendent/ja/uniformed_services_former_spouse.cfm?catname=JA