Divorce Facts and Procedure

  • Published
  • By 1st Lt. Rashid Shakirov and Capt. Rebecca Saathoff
  • Edwards Air Force Base Legal Office

The holidays are often a time of light and cheer. However, for many this time can highlight troubles in relationships. Although not pleasant to think about, it is important to know your rights in a divorce, and the additional protections available for military members and dependents. If you find yourself needing information on divorce, the 412 Test Wing legal office is available to answer questions. The following is a general guide for what to expect during a divorce.

The first step in divorce is identifying what court to file for divorce in. A divorce can be filed in the state in which you or your spouse are a resident. It does not matter where you got married. For example, if you are a Texas resident and your spouse is a California resident, you can file in either state. Typically, this will be your county court, or the family court of the area in which you live. One challenge servicemembers face is that they frequently serve in locations other than the state they are a resident of. Some states, like California, allow spouses filing for divorce to use its courts if they lived in California for at least six months.

Second, prepare and file the paperwork. To begin the divorce, the spouse filing for divorce (the “petitioner”) must file a petition for divorce with the court. If you and your spouse are in agreeance about the divorce, you may be able to file for an “uncontested” divorce, or “summary dissolution” in some states. This process is typically quicker than a divorce where the spouses can’t agree on the terms of divorce. However, these process are normally only available to spouses without children or real property. Every state has different processes and paperwork required to file for divorce. Be prepared to provide your personal and financial information, including what property you and your spouse own together and separately. You should also be prepared to discuss custody arrangements if you have children. Many states, like California, have online template forms you can fill out without the assistance of an attorney. 

Third, after the petitioner has filed divorce paperwork, they “serve” the other spouse. “Service” is the process of formally notifying someone that they are being sued. If your spouse is located on a military installation it can be tricky to serve them paperwork. The military is unable to serve civil lawsuit papers. However, the petitioner can use a process server to accomplish this task. There are international service processes to assist you if your spouse is overseas.

Fourth, the non-filing spouse (the “respondent”) has to respond to the divorce in a certain time period. At this step in the process the, Servicemember Civil Relief Act (SCRA) protects active duty members who, due to mission needs, cannot respond or participate in the divorce proceedings. First, it can allow a “stay,” which is a postponement of a court proceeding if an active duty member cannot attend due to military duty. Second, SCRA protects active duty members from default judgments for failure to respond to a lawsuit. Keep in mind that military duty alone does not trigger these protections, but situations like deployments might. Talk to the legal office to find out if your situation is covered by SCRA.  

At this point, if the spouses disagree on the terms of child custody or how to divide possessions, the courts will set a hearing date where spouses and the judge will go over each item in great detail. How your belongings will be divided depends on the family law of the state in which you filed. Some states, like California, are community property states; meaning all property acquired during marriage is considered equally owned by the spouses. Different laws apply if one spouse acquired property when the spouses lived separate and apart.

Many military members and spouses have questions about how retirement is divided. A spouse is not automatically entitled to any portion of a servicemember’s retirement just by virtue of being married during the time it was earned, or by any length of the marriage. However, a court has the authority to give a spouse from 0 percent to 100 percent of the retirement as part of the divorce. If a court grants a military spouse a portion of the servicemember’s retirement and the marriage meets certain length requirements, the Uniformed Services Former Spouse’s Protection Act provides a way to ensure that spouse is paid what they are entitled to under the divorce decree. It also offers a way to enforce child support payments.

Divorce procedure can get complicated very quickly. It can, and frequently does, take an emotional and financial toll on the people involved. This raises the risk that a divorce could distract a servicemember from the mission. It is important to know your rights in order to protect them. Additional information about divorces in California and all the California court forms may be found at the California Courts Self-Help Website at: http://www.courts.ca.gov/selfhelp-divorce.htm.

If you still have questions, please contact the Base Legal Office at 661-277-4310. Legal assistance attorneys are available by appointment on Mondays. We are open from 7:30 a.m. to 4:00 p.m., on Tuesday and Thursday from 9:00 a.m. to 4:00 p.m., and on Friday from 9:00 to 11:30 a.m.