Military Divorce

A divorce can turn your life upside down, and things often get more complicated when one or both spouses are in military service. Understanding the intricate matters involved in a military divorce in San Diego can result in improved decision-making and more equitable resolutions. Various legal issues can make military divorces different from civilian divorces.

We encourage you to contact our skilled San Diego military divorce lawyers for legal guidance and support in addressing these complicated matters. Our military divorce attorneys at Moshtael Family Law are compassionate yet assertive and aggressive in representing our client’s interests, which helps us get favorable outcomes as far as possible in San Diego military divorce cases.

Procedural Issues in a San Diego Military Divorce

Although in many respects the military divorce process is comparable to a civilian divorce, there are specific procedural concerns to tackle when at least one party is a serving military member. The US government has passed the SCRA (Service member's Civil Relief Act) to enable active military personnel to halt or temporarily delay civil proceedings against them, allowing them to focus on their immediate military obligations.

Since the SCRA applies to military divorce cases, it protects active duty military members in various ways, such as:

• If you are actively serving in the military and a default judgment is issued against you, or it occurs within 30 days of your discharge, you may have the option to invalidate it.
• If you are presented with a summons while serving in the military, you may be eligible to delay the divorce proceedings for a reasonable duration.

As a civilian spouse of a serving military member, you may need to navigate a highly intricate procedure to guarantee that the divorce proceedings are advancing as expeditiously as possible due to the SCRA. Our proficient San Diego military divorce lawyers will take care that your divorce or family law matter is handled in accordance with the state and federal regulations, while ensuring that your rights are fully protected. These are people who have been through the legal corridors before and know where dangers are most likely hiding.

Where Should You File for a Military Divorce?

Since military service members on active duty can be stationed anywhere in the US or abroad, determining where to file for divorce can be confusing. This aspect also makes military divorces distinct from civilian ones. In a civilian marriage, a spouse will file for divorce in the county where they reside. Based on this, that isn’t the case for military spouses, who must file for divorce in the location where they are posted or stationed, or in the state where they are a resident.

The condition may differ if you haven’t been stationed in a particular location for very long. If you still do not have legal residency in the state where you currently live, you will have to file in the state where your spouse is a resident. The other alternative is to wait and file when your or your spouse's situation changes. If you want to file in California, either you or our spouse should be stationed here or have a residency in the state.

Benefits and Rights of a Military Spouse in a San Diego Divorce

The Uniformed Services Former Spouse Protection Act (USFSPA) protects your rights and ensures you receive the benefits you're entitled to even after your divorce. These benefits may include using military exchanges and commissaries, free medical care, retirement benefits, and eligibility for a survivor's benefit plan.

A military member’s spouse is entitled to part of the retirement pay after a San Diego military divorce if the couple was married for a minimum of 10 years, including a 10-year overlap with active military service. There are two specific benefit plans, depending on the number of years a couple lived together during which a member was on active duty:

• 20/20/20 rule — This means 20 years of marriage, and 20 years of service, with a 20 years overlap between them
• 20/20/15 rule — This means 20 years of marriage, and 20 years of service, with a 15-year overlap

People eligible for military spouse entitlements per the 20/20/20 rule get exchange benefits, lifetime medical privileges, and commissary, all of which cease if a dependent spouse is enrolled in an insurance plan their employer provides or if they get married.

People with eligibility under the 20/20/15 rule have only a year of access to medical institutions (pharmacies and hospitals) and health coverage.

Impact of a San Diego Divorce on Your Military Pension

A military pension may be involved if a divorcing service member has served for at least 20 years. Military spouses may sometimes ignore the financial significance of military pension in a divorce, but the effects on their future income and financial security can be considerable.

For example, after 20 years of service, a Captain or Colonel could receive a retirement pension of as much as $72,000 or more annually. Obtaining either a fixed amount or a portion of the pension as part of the divorce settlement will typically result in the most advantageous outcome for military spouses going through a divorce.

The pension doesn’t become an issue in a divorce if the marriage has lasted for less than 10 years. The pension that the ex-spouse receives ends upon the military spouse’s death unless there is a Uniformed Services Survivor Benefit Plan in place.

Health Coverage Following a Military Divorce in San Diego

Following a divorce from a service member, the non-military spouse has two alternatives. The first is to choose free TRICARE coverage if the marriage lasted for a minimum of 20 years during the service member's active duty. If they do not qualify for TRICARE, the other alternative is to purchase conversion health coverage, which is referred to as the Continued Health Care Benefit Program (CHCBP).

Implications for Child Custody and Child Support in a Military Divorce

When determining child custody and visitation in San Diego, the court will not show bias for or against a co-parent currently serving on active duty. When divorcing a military member, the other spouse must recognize that the military spouse may not be present in a child's life while they are on active duty. Pertaining to this, the possibility of a service member being deployed outside the country or state at any moment is insufficient to modify a custody order or visitation schedule.

The couple can approach the courts for modification if the situation is more long-term and will likely affect their children. If military families with kids agree on all aspects of their divorce, including issues related to child custody, they might choose an uncontested divorce. In this type of divorce, the spouses have the freedom to settle visitation and custody matters between themselves without any court intervention or orders.

The state guidelines are followed while calculating child support, and the number of kids involved, the income of both parties, and the amount of time the child spends with each parent are all factored in. The child support amount cannot exceed 60% of a military member’s allowances.

Spousal Support Issues in a San Diego Military Divorce

In San Diego, one of the parties may request the court to issue an order for spousal support. Similar to a civilian divorce, in a military divorce, the higher-earning spouse is typically responsible for paying alimony, which a judge determines during the proceedings. The criteria considered when determining a support order include:

• The duration of the marriage
• The parties’ financial needs and obligations
• The education level and skills a dependent spouse needs for employment
• The age and health of each spouse

Spousal support is generally capped at 60% of the military spouse's pay and allowances. If a couple has been married less than 10 years, the supporting spouse will have to pay for the duration equal to half their marriage's length.

The support will cease if the dependent spouse passes away or remarries. You and your spouse then have to exchange property and debt-related information. Once all these aspects have been covered your case is scheduled for a hearing in court.

Our Proven and Capable Military Divorce Attorneys in San Diego are Ready to Represent You

At Moshtael Family Law, we recognize that military divorce can be relatively more complex, so our tenacious and dedicated attorneys are determined to help you navigate through the maze of regulations and protect your rights at every stage. We believe your sacrifice for our nation is invaluable, and you deserve the strongest possible legal support during this challenging time.

We have over 185 years of cumulative legal expertise and focus on straightforward, honest advocacy. We know that your situation is unique, so we tailor our services to help you achieve the most desirable outcomes. Our team of skilled military divorce lawyers in San Diego works cohesively, combining our vast experience and efforts to provide the advocacy and counsel you deserve.

We know you will have questions and doubts about the best approach in your case, and we will help resolve your doubts and concerns in every way possible. Call us at 619-639-9898 to set up your free consultation or contact us online. today.