Are you or your spouse members of the military stationed in San Diego?
Are you thinking about getting a divorce? It’s important to understand that military divorces can be really complicated. Don’t let just any attorney handle your case.
You need an attorney who has experience handling military divorces and who understands the state, federal, and military laws that might affect the matter.
At the Sachdev Law Group, APC, our San Diego family law attorneys have decades of combined experience helping military couples get divorced. We’re intimately familiar with the laws and procedures that might affect your case. Our San Diego law firm, led by Puja A. Sachdev, is one of the most qualified to handle your complex divorce case.
That’s because Attorney Sachdev is not just a divorce lawyer. She’s also a Certified Family Law Specialist (CFLS), trained family law mediator, and a Certified Divorce Financial Analyst. That means your case will be in experienced and skilled hands.
Contact our San Diego law firm to schedule a free consultation today. Our experienced military divorce lawyers are here to help you navigate what is probably one of the most difficult times of your life. We’ll do everything we can do secure the results you want and need.
Understanding Military Divorce in California
Military divorces tend to be quite different from divorces involving civilians. Here are a few of the most notable differences that you’ll have to navigate in your military divorce case.
Which state will have jurisdiction over your divorce? For civilians who live in San Diego full-time, the answer is easy – California. However, military families tend to move around a lot. If you or your military spouse are stationed in California, and have been for at least 6 months, you can seek a divorce in the state.
California can have jurisdiction over your divorce. Things can get complicated if you have a family home in another state or if your spouse lives elsewhere.
California might have jurisdiction over the dissolution of marriage, but might not have the power to make decisions about property division, child custody, and/or child support if those matters are under the control of a different state.
Military divorces tend to take longer than civilian divorces. Why? One reason is because, thanks to a military law known as the Servicemembers Civil Relief Act (“SCRA”), servicemembers can ask to have civil proceedings – including family law matters – postponed while they’re deployed or fulfilling their military obligations.
Service Of Process
In order to begin divorce proceedings, one spouse (the “petitioner”) has to formally file a summons and petition with their local court. Those divorce papers then have to be served on the other spouse (“the respondent”). California has rules for how service of process must be accomplished.
However, the military has rules of its own if a servicemember is on active duty. These rules might prohibit a spouse from serving divorce papers while a servicemember is deployed, to avoid distracting them, taking their attention away from the military mission, or having a default judgment entered against them for failing to respond.
Military Service Will Impact Child Support Obligations
Parents have an obligation to make sure that their children are taken care of, financially. When they’re married, this is fairly easy to accomplish. Things can get tricky when parents get divorced. This is certainly true for civilians. It’s even more complicated when one or both spouses are members of a branch (or branches) of the armed forces.
That’s because each branch of the military has rules about how child support is calculated. Many times, the child support obligation calculated under military rules will be less than what would be calculated under California state rules. Why? The military uses different rules to determine a servicemember’s “income.” This determination might not only affect child support requirements, but also spousal support payments, as well.
How a Military Divorce Might Affect Child Custody
Child custody rights for active duty military are the same as those of civilian parents. There is no law that prevents an active military parent from serving as a primary custodial parent.
Ideally, both the civilian and military parent would be able to mediate a custody and visitation arrangement that addresses the commitments of the military parent and allows for flexibility for times of deployment or mandatory training sessions.
What happens if there’s a dispute over custody while a military parent is deployed or called to active duty? Again, military rules are there to help the military parent. Under the SCRA, an active duty member of the armed forces – including the Navy, Army, Marines, Air Force, and Coast Guard – can ask to have child custody and visitation hearings postponed, or paused for 90 days.
However, the postponement will only be granted if a court finds that the servicemembers’ active duty status “materially affects” his or her ability to take part in the proceeding. Several factors might influence this determination, including:
- The length of the parent’s military deployment
- Where the parent is stationed, and
- What’s in the child’s best interests.
Courts might also consider other relevant factors applicable to your particular situation.
Property Division in Your San Diego Military Divorce
When you file for divorce in California, you’re subject to the state’s community property laws. Community property – most assets or debts you or your spouse obtained while you were married – are to be divided equally. Separate property – things you owned individually before you got married, as well as things like inheritances or gifts – are yours to keep in their entirety.
You may be able to get around the state’s community property laws if you have a prenuptial agreement or a postnup. If you don’t, you’ll have to either find a mutually agreeable way to divide and allocate your property or let a court decide.
Rules Regarding Military Benefits
It’s important to note one thing about property division that can be different in a military divorce. For civilians, pensions and benefits are typically considered community property. Many times, both spouses have an equal right to those after a divorce. That might not be the case if a spouse is in the military.
In fact, there are specific guidelines – detailed in the Uniformed Services Former Spouse Protection Act (USFSPA) – about how military pensions, military retirement benefits, military health care benefits, and survivor benefits should be divided.
Domestic Violence And Military Divorce
Domestic violence charges can accompany divorce. These charges can prevent you from being able to continue service.
Two things that can prevent you from service: a life-long firearms ban and domestic violence.
One of the reasons that you are no longer eligible for military service is because you will no longer be able to carry a firearm. Under California law, any person possessing a firearm after being charged with felony domestic violence will be guilty of felony firearm possession. Regardless of whether the felony domestic violence charge occurred in California or in another state, you will not be able to possess a firearm in California for the rest of your life.
The penalty for doing so is a state prison sentence of 16 months to three years and a maximum fine of $10,000. There is a law in California that would allow those convicted of a misdemeanor domestic violence charge to be prohibited from possessing a firearm for 10 years, rather than a lifetime ban.
However, federal law trumps state law. Under federal law, almost all persons convicted of domestic violence, regardless if it is a misdemeanor or felony, are banned from ever possessing a firearm in the United States. The penalty for doing so is a maximum of 10 years in prison and up to a $250,000 fine. Without a firearm, you cannot serve in any branch of the military.
Further, under 18 U.S. Code Sections 921 and 922, domestic violence is considered a crime of “moral turpitude” that automatically makes you ineligible for service in any branch of the military. A crime of moral turpitude is one that shows you are morally unfit for military service.
Might be able to get a conviction waiver that would allow you to enlist.
Several factors are considered including the exact nature of the crime, how long ago it occurred, your age at the time, and whether you fulfilled the terms of your sentence such as paying all fines and successfully completing probation.
Because it is almost impossible to serve in any branch of the military with a domestic violence conviction, it is important that you hire a qualified domestic violence defense attorney as soon as you are arrested.
Specialized Military Divorce Representation For California Families
Nothing about getting a divorce is easy. At the Sachdev Legal Group, APC, our family law attorneys understand this. We also know how much more complicated things can get when you and/or your spouse are in the armed forces. Different rules apply to you. That’s why it’s critical to choose a lawyer who has extensive experience handling military divorce cases.
That’s what you’ll get when you turn to the experienced San Diego military divorce lawyers at the Sachdev Legal Group, APC for help. We’ll guide you and your military family through the process and help you navigate one of the most difficult times of your life. We’ll fight for you and do our best to secure the results you want. That’s our promise to you.
All you have to do is contact our San Diego area law office and set up a time to discuss your case. Your first consultation is free, so don’t hesitate to reach out to us to schedule yours today.