Anyone filing for divorce in California, while either they or their spouse is in the military, should consider the following issues.
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Service Member Benefits
Service member benefits address the protections service members have during divorce and the rights that spouses have to military benefits.
Protections Offered by the Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act helps protect Servicemembers’ legal rights when called to active duty. It applies to active-duty members of the regular forces, members of the National Guard when serving in an active-duty status under federal orders, members of the reserve called to active duty and members of the Armed Services, National Oceanic and Atmospheric Administration, Public Health and the Coast Guard serving on active duty in support of the armed forces.
In regard to divorce proceedings, Servicemembers may obtain a stay, or postponement, on all civil and administrative proceedings if they can show their military service prevents them from either asserting or protecting a legal right which would include an upcoming deployment.
Specifically, the courts will look to whether military service materially affected the service member’s ability to take or defend an action in court. A court must grant a stay if the service member submits a written communication to the court showing:
- How military requirements materially affect the ability to appear;
- The date when the service member will be available to appear; and,
- Communication from the commanding officer stating that duty prevents appearance and leave is not authorized.
Default Judgments for Divorce
The Servicemembers Civil Relief Act also provides certain protections for members regarding default judgments for failure to respond to a lawsuit or failure to appear at trial. Before a court can enter a default judgment against a military member, the person filing for divorce must provide the court with an affidavit stating the defendant is not in the military. If a default judgment is entered against a service member, the judgment may be reopened if the service member makes an application within 90 days after leaving active duty showing they were prejudiced and that they have a legal defense.
Uniformed Services Former Spouse Protection Act
This act is a federal law that provides certain service member benefits to former spouses of military members. The benefits may affect receipt of retirement pay and medical care, as well as the use of the exchanges and commissaries.
Former Spouse’s Eligibility for Service Member Benefits
Whether you are entitled to commissary, exchange or medical benefits depends on (1) the length of your marriage, (2) the length of time your spouse served in the military, and (3) the number of years your marriage overlapped with your spouse’s military service.
An un-remarried former spouse receives full benefits which include medical, commissary, exchange and theater privileges under the Morale, Welfare and Recreation program if:
- They were married to the military member for at least 20 years at the time of the divorce, dissolution or annulment;
- The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the service member does not have to be retired from active duty);
- The former spouse was married to the member during at least 20 years of the member’s retirement-creditable service.
Should a former spouse not qualify to receive full service member benefits, they may still be eligible to one year of transitional military benefits for purposes of military medical care only. The former spouse will be entitled to retain TRICARE medical coverage, but only for a transitional period of one year. Unlike a 20/20/20 former spouse, a 20/20/15 former spouse will not have access to the military exchange, installation privileges or commissary privileges. This rule requires:
- The service member performed at least 20 years of creditable service;
- The parties’ marriage lasted at least 20 years;
- The period of the marriage overlapped the period of service by at least 15 years.
Effect of Divorce on Service Member Benefits
Unless you meet the strict requirements of the 20/20 Rule, you will not be eligible to continue using the commissaries and exchanges once your divorce is finalized. Until then, you may retain your identification card and can continue to receive your commissary, exchange and health care benefits.
The service member does not have the authority to evict you; only the installation commander has that authority. By law, military family housing can only be occupied by Servicemembers who reside with their family members. Each of the branches of service has regulations which require the family housing unit to be vacated usually within 30 days if the service member stops residing there or if there are no family members residing there. Thus, if you are separated and you are not in the military, you and your family must vacate military family housing.
Health Care Benefits
If you are neither a 20/20/20 nor a 20/20/15 former spouse, you will not be entitled to any military health benefits after your divorce. However, you can receive health care coverage through the Department of Defense Continued Health Care Benefit Program, a premium-based temporary health care coverage program, for 36 months of coverage until alternative coverage can be obtained.
Spousal and Child Support
Each of the military services has policies requiring Servicemembers to provide temporary support for family members upon separation in the absence of an agreement or court order. In order to receive spousal or child support you must specifically request that a civilian court do so. Additionally, you must send Defense Finance and Accounting Service an order from a court or child support enforcement agency that directs the government to pay monies for support or alimony. Support payments can be ordered by the court and satisfied through a garnishment order submitted to DFAS. The allotment will go into effect 30 days after the notice was sent to the military member by DFAS. You must obtain the garnishment order from a state court over the military member and provide it to DFAS.
Jurisdiction for Divorce
While civilians file in the state where they live, members of the military have the option of filing in more than one jurisdiction. This can greatly affect the outcome of your divorce because laws in one state may be different than the laws in another state.
Though divorce laws differ from state to state, California is a no-fault divorce state. This means that a marriage can be ended without proving that either party did anything wrong. No explanation for why the marriage is ending is required and the two people can simply say that they are no longer compatible or that they have irreconcilable differences.
Servicemembers and their spouses can file for divorce through overseas jurisdictions, the courts of the United States may or may not recognize the ruling. Generally, if either you or your spouse is domiciled in the jurisdiction that grants the divorce, and there is proper service and notice, then that court will have the power to grant the divorce and the U.S. courts will recognize it.
If you are living overseas when your marriage is terminated by divorce, you and your children (as well as your possessions) may be able to return to the United States at the government’s expense. Servicemembers permanently stationed outside the United States may request early return of dependents, authorizing the return of command-sponsored family members and their household goods before the service member’s tour ends.