Out of all types of divorces, military divorces are the ones that are open to a higher number of complications. Military marriages are similar to the civilian divorces, however, there are a number of important differences that service members and their spouse will need to know.

The added complexities in military divorce make the process more stressful than the average divorce. If you have been serving in the military and are considering divorce, there is information you need to know. Military divorces do have similar matters such as spousal support, child custody and support, asset division, and debt division; however, there are other issues in a military divorce that are not part of a civilian divorce.

Filing the Divorce

When it comes to military divorces, one of the biggest questions is where to file the divorce. In a civilian divorce, a spouse may file for a divorce in the country they or their spouse is a permanent resident.  While in a military divorce, this is not the case. In divorces that involve military member, the divorce must be filed in the county where the service member is stationed. Thus, the non-service member has to file for divorce in the county where the service member resides.

The Case of Active Duty

When a non-military spouse files a divorce, like the civilian divorces, the non-filing spouse (service member) must be served with the petition and summons. However, sending the documents to the active service member offers a unique set of challenges. The federal government has designed the Servicemembers Civil Relief Act – SCRA to cater to these challenges. The sole purpose of the SCRA is to protect the rights of the service members who are on active duty.

The SCRA protects a service member during the divorce proceedings from being defaulted. Thus, if the service member is served with the petition and summons for divorce, and the service member does not respond within the appropriate time-frame because of their military service, the court cannot hold the service member in default. In a civilian divorce, when the non-filing spouses does not respond timely after valid service, the filing spouse may file a request to enter default.    Also, in a military divorce, upon request, the SCRA can allow the Court to delay the divorce proceedings until the time the spouse on activity duty returns. The service member can choose to waive the postponement of the divorce and then hire a professional divorce attorney.

 

The Matter of BAH and BAS

Another significant issue that arises in a military divorce is whether BAH and BAS count as income. BAH is the Basic Allowance for Housing, and BAS is the Basic Allowance for Sustenance. BAH and BAS is supplemental income service members receive above their basic salary to pay for living expenses.

Under the California Law, the matter whether or not to count these allowances as income when calculating for child and spousal support, has been decided. In 2010, California Courts confirmed that BAH and BAS is income when calculating spousal support and child support. The Court states that any amount that fulfils the basic requirement of income will be considered for determining income for spousal support and child support, regardless of how it is paid. See California Family Code section 4058. 

Dividing the military retirement in divorce is another significant matter that may require a different analysis than it would in a civilian divorce case. Want to know more about the military divorces? Consult  divorce lawyers in San Diego by emailing the Law Office of Doppelt and Forney, APLC today at roy@dffamilylaw.com or text (858)880-6689. You can also get a free 30-minute consultation with our knowledgeable divorce attorneys in San Diego.