Residents of California can divorce someone in the military even if that party doesn't agree – but there are a few things to be aware of that are unique to military divorces.
If one or both spouses are in the military, the petitioner can file divorce papers either where the servicemember is stationed or in the state (usually the county courthouse) where they currently reside. If you want to file for divorce in California, then one of you must either reside or have a station in the state. It's usually better for the non-military spouse to file where they reside, as servicemembers move around often.
Some military divorces move smoothly, just like a standard divorce. But others come with extra delays and red tape. Complicated cases might require legal help from experts in military family law.
What are the grounds for a military divorce in California?
The no-fault state of California allows couples to cite one of two reasons when filing for a divorce. You're required to determine which is right for you when you create the divorce papers.
The two reasons are as follows:
- Irreconcilable differences cause the marriage to break irreparably
- Legal incapacity, which is permanent and makes someone unable to make decisions
You aren't required to prove that either state is true. You just must state the reason on the forms.
Where do you file a military divorce case in California?
If you want to file for divorce in California, then one of you must either reside in or have a station in the state. California law only requires one spouse to meet residency requirements. In general, it's best for the person filing the documents to meet these rules.
One person in the couple must fit these criteria:
- Be a California resident for the past 6 months (minimum)
- Live in the county in which the case is filed for the past 3 months or longer
It's tempting to use the serviceperson's residence to prove eligibility, but it can be difficult. Military families move about once every three years, but some move much more frequently. Some military members don't (or can't) tell their spouses where they are. If you use their California status to file, it could change or be incorrect and thus rejected by the court.
If you meet these eligibility requirements, you can file in the California county where you live regardless of where your spouse might be at the moment.
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How to file for a military divorce: A summary
Military divorce involves the same steps used in a traditional one. You'll complete them sequentially.
The steps include the following:
- Filing: One person files the proper documents (the petition and any extras) with the California courts.
- Sharing financial data: The same person fills out paperwork about assets and debts, and they're shared with the other spouse for review within 60 days.
- Collaborating: Your partner fills out the same set of documents and shares them with the filing party. Together, you determine if you can agree on the terms of the divorce. If you can't, you can try to resolve your disagreements with mediation or meeting with advisors. If you still cannot, you will need to go to court.
- Finalizing: You create and sign final documents, or the judge does this for you at the end of your hearing or case.
Forms needed to start a military divorce
Three forms kick off the military divorce process in California. You can fill them out alone or with help from divorce services like Hello Divorce, a lawyer, or another trusted divorce advisor.
The three forms are:
- Petition—Marriage/Domestic Partnership (FL-100): You petition your partner to end your marriage.
- Summons (Family Law) (FL-110): You ask your partner to respond to the papers and outline what happens if they don't.
- Proof of Service of Summons (Family Law — Uniform Parentage — Custody and Support) (FL-115): You don't fill this out, but you need a copy. It proves that your partner was given the two documents listed above in a legal manner.
You're required to share financial data (mandatory financial disclosures) with your partner within 60 days of filing for divorce. You must provide those documents legally, which means serving them.
As we'll discuss more below, it's difficult to serve some military members with documents. You could opt to send these financial pieces at the same time as your starting documents.
The financial documents include the following:
- Declaration of Disclosure (FL-140): This cover sheet outlines the documents you're sharing with your partner.
- Income and Expense Declaration (FL-150): Offer information about your income, and attach two months of supporting paperwork.
- Schedule of Assets and Debts or a Property Declaration (FL-142 or FL-160): Use either of these forms to provide data about the debts you owe and the property you own as a couple.
- Optional, Property Declaration (FL-160): If you need more space than allowed on the prior forms, use this document.
A step-by-step guide to serving papers
Serving papers means providing documents to the partner via a legally-approved method. Several steps are involved, and they’re sometimes complicated when your spouse is serving in the military. Here’s what you need to do:
1. Find your spouse
To serve someone with papers, you must know where they are. It's often difficult to find military members due to the protections enacted after 9/11. Some military branches won't tell anyone where servicemembers are, even when asked to do so.
Start with the last known address or deployment area and work forward. You might ask a lawyer to help with this step.
2. Gather your paperwork
We’ve already outlined what documents you need to file for a military divorce. Once you’ve completed and filed them, you’ll get official copies to share with your partner.
3. Pick a server
This requires asking an adult who is not part of your case to give your spouse the documents. Learn more about methods of service in California here.
Some lawyers work with contractors to serve military members. They know how to work within the system, find out where your partner is, and how to serve them. If you have no idea where to serve this person, hiring an expert could save you time and stress.
4. Keep in touch
Your server should deliver paperwork to your spouse, and that method can look really different depending on where your spouse is. For example, if your spouse is serving in California, things will look very different than the steps you’d use for a spouse who is serving in Italy.
Stay in close contact with your server and ensure that the documents have been handed off.
5. File proof of service
A server signs an official document that you must file with your paperwork. If you don't get a server's signature, your divorce can't move forward.
When the service is complete, and the form has been signed, take it back to your courthouse and file it.
After you serve papers, you must wait for a response from your spouse, and in a typical divorce, it's due in 30 days. A military timeframe could be very different.
If your partner asks for a deadline extension, you’ll be notified of that. Your paperwork can’t just hang out there with no response at all.
What issues must you agree on?
When your partner responds to your paperwork, you start negotiating all the terms required to end your marriage. Together or apart, you have several issues to settle, such as these:
Childcare and custody
Couples with children must decide where the kids will live, when they will visit the other parent, and who can make decisions regarding their children.
These two forms start the conversation with your spouse:
- Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FL-105): Identify the children you share and will discuss during your divorce.
- Optional, Child Custody and Visitation (Parenting Time) Application Attachment. (FL-311): If you already have an understanding with your partner about child custody, use this form.
Child and spousal support
Couples with children need to determine how they'll be financially assisted. Child support payments make that possible, and couples can determine how much one party pays the other and on what schedule, or how they will share all these expenses.
All couples, even those without children, might determine one partner deserves payments to support a lifestyle that's become expected. These spousal support payments should be arranged during the divorce.
Some couples use a military member's salary as part of spousal support payments. Others look into military pensions. Californians can divide military pensions if both parties are state residents.
Debt & assets
The debts spouses rack up during their marriage could be split equally or via another method. Assets like property and physical items like computers should also be divided between the two.
It can be difficult to determine how to split up debts and assets. The more you collaborate with your partner on these items, the better. You will get more of what you both want by working together than leaving it up to the court’s discretion.
Laws that can complicate a military divorce
Any divorce can be drawn out and hard to resolve. However, military divorces can be even more complex. The following two pieces of legislation play an important role in most military divorces:
Servicemembers Civil Relief Act (SCRA)
The Servicemembers Civil Relief Act (SCRA) offers legal protections to individuals serving in the Army, Marine Corps, Navy, Air Force, and Coast Guard. It also applies to reservists when they’re serving on active duty.
In a traditional divorce, one person could ask for a default judgment. If you’re sent paperwork and don’t respond to it, the other party could move the case forward without your input. Per the SCRA, this isn’t possible for people serving.
Per the SCRA, the court can’t enter a default judgment until it appoints an attorney to represent you. The court can also delay proceedings for at least 90 days while you’re on duty.
Uniformed Services Former Spouses’ Protection Act (USFSPA)
The Uniformed Services Former Spouses’ Protection Act (USFSPA) stemmed from a court case in the 1980s. Divorcing people wanted clarity on whether (or not) retirement benefits accrued during marriage should be subject to division on divorce. The courts ruled that those benefits should be part of the family’s estate and subject to splitting.
Per the USFSPA, state courts can treat military retirement funds as they would any other marital property. The appropriate government agency can make those payments directly under certain conditions.
These rights aren’t automatic. The payments must be court-ordered, and they can’t be applied unless the parties meet a specific requirement.
Under USFSPA, the retirement benefits can only be shared when the spouses were married for at least 10 years, during which time the member performed at least 10 years of creditable service. If the marriage is too short or the service time is too short, the retirement benefits are protected and not divided in divorce.
How long does it take to get a military divorce?
People serving in the military are protected against lawsuits and other legal issues while they're serving their countries. These protections could delay your divorce. Military members on active duty can delay their proceedings throughout their active time, and they can delay it for up to 60 days after it ends.
Finding the person to serve papers can also take time. If you struggle to locate the person, this adds time to your overall timeline, too.
You can try to shorten the timeline by doing the following:
- Find your spouse as quickly as possible and via any means necessary.
- Work proactively to come to an agreement with your spouse.
- Agree to terms that work for your future and children’s best interests rather than trying to get revenge.
How much does it cost?
Filing paperwork costs between $435 and $450. If you must hire someone to help you serve papers or negotiate with your partner, you will pay more. If you cannot afford the fees, you can apply for a waiver.
Longer court cases involving complicated scenarios and arguing partners take longer and are more expensive. Simplifying the process could help you to save money on the case.
Divorces are legal agreements that come with plenty of consequences. Rushing the process to save money now could lead to regrets later.
Main differences between civilian & military divorces
All divorces involve ending a marriage. But civilian and military divorces do come with a few critical differences.
The two differences involve the following:
- Difficulty: It's harder to work with someone serving in the military. It's difficult to know where they are, and the delays can make it harder to come to terms.
- Timeframes: Military divorces can take longer due to serving issues and delays requested by the other party.
Watch: How to Get a Divorce in California
References
Divorce in California. Judicial Branch of California.Why Do Military Families Move So Much? Armed Services YMCA.
Getting a Divorce in California? Judicial Branch of California.
The Military Divorce Handbook. American Bar Association.
Start a Divorce Case: What's Next? Judicial Branch of California.
Divorcing the Military Spouse. American Bar Association.
The Servicemembers Civil Relief Act (SCRA). Consumer Financial Protection Bureau.
A Basic Guide to Uniformed Services Former Spouse’s Protection Act. (September 2015). U.S. Army.
