There are three ways that service members or their spouse can establish jurisdiction in the State of California to file for divorce. They can file in California if the service member’s legal residence is California; the service member’s spouse legal residence is California; or, if the service member is stationed in California.
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Military Divorce Jurisdiction
Military divorce jurisdiction is required before a court can grant a divorce to military members or spouses. A court must have “jurisdiction” or the authority to hear the case. For civilians, jurisdiction is generally the place where the person lives. However, for military personnel, military divorce jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else.
California Residency Requirements
Service members do not change their legal residence when they move to another state. The Service members Civil Relief Act (SCRA) allows service members to live in one state and claim another as their legal residence. However, the service member’s spouse legal residence is the state where they reside. In California, even if the member or spouse are not residents, either can file for divorce once they meet the minimum residency requirements.
Service members can file for divorce in California if they reside in the state, are stationed in the state, or claim the State of California as their legal residency. Either party must have resided in the state for the six month period prior to filing and in the county where they are filing for the three-month period prior to filing.
California Process of Service
The activity duty spouse must be served should their spouse file for divorce for the State of California to have military divorce jurisdiction over the military member. If you are on activity duty and your spouse files for divorce and tried to serve you can refuse to accept the service.
Service Members Civil Relief Act
Under the Service Members Civil Relief Act (SCRA) military members are protected from lawsuits including divorce proceedings. A court can delay legal proceedings and military divorce jurisdiction for the time that the service member is on active duty and for up to 60 day following active duty.
The California courts have the ability to divide the couples’ community assets and liabilities. Military pensions are governed by the Uniformed Services Former Spousal Protection Act (USFSPA) which authorizes direct payment of a portion of a military service member’s retirement pay to your soon-to-be former spouse and extends some base privileges to certain former spouses. The USFSPA allows a California court to treat a service member’s retirement pay as either their separate property or to be shared with the former spouse.
Service members have a duty to provide support for their children and former spouses. Up to 60% of your wages can be garnished for child support. Further, the service member’s commanding officer is required to ensure that the service member is complying with all court orders for child support.
Former Spouse’s Military Benefits
Under the USFSPA as a former military spouse, you may be eligible for full medical, commissary and exchange privileges is you meet the following requirements:
- You were married to the service member at least 20 years.
- The service member had at least 20 years of creditable time allocated to retirement pay.
- There is at least a 20 year overlap of the marriage and the credible time.
- You did not remarry which terminates all benefits unless your remarriage is terminated.
Division of Service Member’s Retirement Pay
In California, military retirement pay is considered to be community property which will entitle the spouse to a portion of this asset. Under the Uniformed Services Former Spouse Protection Act (USFSPA), California is allowed to treat disposable retirement pay either as the service member’s separate property or as both spouse’s community property. As community property, a California court can decide on how to divide retirement pay and what percentages each spouse will receive.
The Department of Defense (DOD)
The DOD can make direct payments of a service member’s retirement pay to the former spouse if all of the following guidelines are met:
- The ex-spouse must have been married to the military member for a period of at least 10 years.
- At least 10 years of the marriage must overlap with 10 years of credible time for retirement.
- All payments to all former spouses cannot exceed 50% of the service member’s retirement pay.
- Disability pay is not divided but can be garnished for spousal or child support.
- Spousal support or child support can be paid in addition to a division of retirement pay but, the DOD will not pay an amount that exceed 65% of the service member’s disposable retirement pay.
California Jurisdiction Over Retirement Pay
An important provision of the USFSPA requires a California court to establish jurisdiction to distribute a service member’s retirement pay. This is done by proving:
- The service member’s residence, other than because of military assignment, is in California.
- The service member’s domicile is in California.
- The service member consented to the jurisdiction of a California court.
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