Military service can be extremely difficult for families. Long deployments can wreak havoc on a marriage. Military families can also face periods of severe financial distress during government shutdowns, high out-of-pocket relocation costs, and high rates of military spouse unemployment
It is not surprising that the divorce rate for active-duty military service members is slightly higher than the civilian population.
The impact of this can be found in Southern California which has several major military installations. Orange County has both Naval Weapons Station in Seal Beach and Joint Forces Training Base in Los Alamitos. Los Angeles has the Los Angeles Air Force Base / Los Angeles Space Force Base in El Segundo,
Divorces in Southern California are governed primarily by the California Family Code—rather than federal statutes. However, there are several circumstances where federal laws and statutes heavily intersect with and preempt state law regarding specific financial, military, and property aspects of a California dissolution.
This is a two-part blog series on military divorces. The first article reviews those instances where military service can impact how a divorce is handled by a family law court in Southern California. Federal statutes override or reshape state procedure at several points, and California has built its own set of rules specifically for service members and the spouses they leave behind during deployment. Part two of this series will discuss how division of property is impacted by divorces where one party is a service member.
If you are planning to handle your divorce without an attorney, it is important that you understand how the federal laws can affect your divorce. What follows is a walk through the places where military status changes the math, the timeline, or the paperwork in a contested divorce filed in Orange or Los Angeles County.
Disclaimer: This blog constitutes general information and is not legal advice. This platform is not a law firm, and its employees, agents, or representatives are not acting as your attorney. The content and tools offered are intended to assist individuals in understanding and navigating the divorce process without an attorney but are not a substitute for advice from a qualified attorney licensed in your jurisdiction. To allow you to independently verify information, wherever a fact appears below, you'll find a link to the statute, court rule, or source behind it.
Under California law’s residency requirements, a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition. These requirements run concurrently rather than back-to-back.
Consider these scenarios:
where a member of our military has an overseas assignment and they are stationed in another country with their spouse.
A military member’s permanent residence is in Texas, but they are currently stationed in Orange County California
Where can they file for divorce? The Serviceman Civil Relief Act provides guidance on this matter. To file for divorce in California, the court must have jurisdiction over the marriage through one of three paths:
The Filing Spouse Meets Residency: The non-military spouse has lived in California for 6 months and the filing county for 3 months.
The Service Member is Stationed Here: The active-duty military member is permanently stationed at a base in California.
The Service Member Claims Domicile: The service member considers California their legal, permanent home state (e.g., pays CA taxes and holds a CA driver's license), even if stationed overseas.
If a service member can claim domicile in more than one state, they should consider which of those states would afford them a better outcome. For example, Texas and California laws divide community property and military pensions differently, tax military retired pay differently, and treat post-divorce disability ratings differently. Choosing where to file, when more than one state is technically available, is not a paperwork detail. It can change what each spouse walks away with.
For any divorce to commence there must be proper service of the petition and Summons to the defendant. Serving these to a military service member can offer an additional degree of complication depending on whether the military member live off base, resides/works on a restricted military installation, or is on deployment.
Lives off-base: If the service member lives off-base then the fact they are in the military is a non-issue. Off-base service follows standard California civil rules.
Lives on-base: Military facilities have restricted access so having a service member served in the traditional fashion is not possible. On-base service requires either coordinating with military authorities or the California Military Department for state-specific units
Deployed Service Member – If the service member is deployed there are additional issues that can complicate service. It is quite possible that due to operational security you may not know precisely where they are at or what they are doing. Even if you do know where the service member is stationed you have a host of laws you must comply with to perfect service including:
Federal law can also impact a California divorce proceeding where an active-duty service member’s military duty materially affects the ability to participate. 50 U.S. Code § 3932 protects active-duty members from being legally blindsided or forced into default judgments while deployed. A service member can be allowed to request a temporary "stay" (pause) of proceedings for at least 90 days if military duties stop them from attending. The judge may also grant a stay on its own volition.
This stay however is not automatic and a judge in Orange or Los Angeles County will typically want something in writing from the command confirming that duty interferes with the case. The length of the stay is not predetermined.
After the ninety-day stay, the matter may be brought before the Judge for review and determination about whether additional time is needed. In fact, either side can ask the court to revisit a stay once granted, and a spouse who believes the delay is being used strategically rather than out of genuine necessity can push back on the record. If the court refuses to grant an additional stay of proceedings, the court shall appoint counsel to represent the servicemember in the action or proceeding.
50 U.S. Code § 3932 also protects active-duty service members from being legally blindsided or forced into default judgments while deployed. The statute applies to all divorce proceedings including child custody matters.
Before a Court can enter a default judgment it requires the Plaintiff to file an affidavit with the Court stating whether the defendant is in military service. If it appears that the defendant is in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant.
If an attorney appointed under this section to represent a servicemember cannot locate the service member, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the service member.
If the court is unable to determine whether the defendant is in military service, the court, before entering judgment, may require the plaintiff to file a bond in an amount approved by the court. If the defendant is later found to be in military service, the bond shall be available to indemnify the defendant against any loss or damage the defendant may suffer by reason of any judgment for the plaintiff against the defendant, should the judgment be set aside in whole or in part.
If a default judgment was entered against a service member covered by this section during their period of military service (or within 60 days after termination of or release from such military service), the court entering the judgment shall, upon application by or on behalf of the service member, reopen the judgment for the purpose of allowing the service member to defend the action if it appears that:
a) the service member was materially affected by reason of that military service in making a defense to the action; and
b) the service member has a meritorious or legal defense to the action or some part of it.
While not federal law, California statutes do provide special provision for service members who find themselves unable to meet the agreed upon child custody orders based on their military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.
California Family Code section 3047 provides that when due to conditions of a deployment a parent is unable to meet or maintain child custody orders, the resulting change will be viewed as a temporary order made without prejudice. The presumption is that custody reverts to the pre-deployment arrangement once the service member returns, unless the other parent can show that reversion isn't in the child's best interest.
Courts are also directed to consider virtual visitation, phone calls and video calls that keep a deployed parent in a child's daily life, and to prioritize calendaring these motions rather than letting them sit behind a backlog of other family law matters
Military life can be hard and even harder on a marriage. A service member does not have the luxury of refusing a deployment or order to participate in a divorce or custody matter. This is why both federal and state statues provide leeway and special considerations to members of our armed service whose life is already difficult.
In part two of this series, we will drill down on how being a service member can impact how a divorce settlement is handled in a community property state such as California.
We understand that the divorce process with its unique rules and jargon can be confusing. DivvyLaw wants to be a conduit to allow you to better understand and navigate family law issues in Los Angeles and Orange Counties. If you would like to be notified of upcoming blogs and be put on a wait list for access to a revolutionary solution, click on the link below and you will be added to our list.
The standard closing, and an earned one given the subject: this piece is general information with sources you can check, not legal advice about your marriage, your money, or your case.