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What is the process for divorcing your military spouse when they are overseas?

Every divorce is different — and there can be complex issues if you are divorcing a spouse while they are serving in the military overseas. In cases where one or both spouses is a member of the Armed Forces, there are specific rules that must be followed in order to get your divorce approved by a judge. When it comes to the divorce process, military members are protected by the federal Servicemembers Civil Relief Act (SCRA) — and spouses are safeguarded by the Uniformed Services Former Spouse’s Protection Act (USFSPA).

The first question that arises when divorcing a military spouse who is on active duty is where to file. In a civilian divorce, the case is commenced in the county where one of the spouses resides. The spouse is then served with the summons and petition. While a military spouse does not have to be present in California at the time you file for divorce, the process of serving them can often be difficult.

Under the SCRA, if a service member is served with divorce papers overseas, a default judgment cannot be issued if they don’t respond. The SCRA also allows a military spouse to request a stay to postpone the divorce proceedings for 90 days, and it can be extended if the service member cannot participate in the proceedings for duty-related reasons. However, a service member may waive the right to delay the proceedings if they choose to do so.

There are other critical procedural differences between civilian and military divorce. These include the following:

  • Child support and spousal support — While a civilian’s wages can be garnished, obtaining back child support or alimony from an active duty service member is more complicated. You might need to reach to your co-parent’s commanding officer for assistance. However, state law dictates the amount to be paid.
  • Dividing military retirement pay — The USFSPA classifies military retirement pay as property rather than income. Generally, couples must have been married for at least ten years, and the service member must have been in the military for ten years or more, for a former spouse to receive a portion of their ex’s military retirement pay.
  • Healthcare benefits — A former spouse who has not remarried can continue to access military healthcare benefits if the marriage lasted for 20 years and the service member performed 20 or more years of military service. This differs from a civilian divorce in which healthcare benefits terminate once the divorce decree is issued.

There are many other procedural differences between a typical divorce and ending a marriage with a military spouse deployed overseas. It’s crucial to consult with an experienced divorce attorney who can help you navigate the process and advise you regarding your legal rights. Strategic Law Command provides committed counsel for clients in the Greater Sacramento area facing divorce. Call (916) 787-1234 or contact us online to schedule a consultation at our Roseville office.