Encinitas Military Divorce Attorneys

Encinitas is home to many military families, and Griffith Young is proud to have provided legal services to them for years. Sadly, military service is stressful, and deployment and other issues make it harder for spouses to remain connected. After years of struggle, many couples realize that it’s time to divorce. Contact our law office. Military divorces are in some ways like civilian divorces, but important legal issues arise regarding where to file and whether a military retirement is subject to division.

In a consultation, we can answer your questions and then come up with the right divorce strategy. Military spouses have many legal issues which do not arise in civilian divorces, and you need a lawyer who is attuned to the differences. The Encinitas military divorce attorneys at Griffith Young will explain more in a private consultation.

Where to File for Divorce

One of the hardest questions involves determining where to file for divorce. In the typical civilian divorce, either spouse would file for divorce down at the county courthouse and then serve papers on their spouse. However, with military divorces, the place to file is not so clear-cut.

California courts need power to even grant a divorce. A court will only have power if at least one spouse has lived in California for at least six months and in the county where they file for at least three months before the date of filing. If you have just moved to Encinitas, then you might need to wait. Also, a court needs personal jurisdiction over each spouse. If you file for divorce, then the easiest way to obtain personal jurisdiction is to serve the divorce papers on your spouse while they are in California.

But a military spouse might be stationed in a different state or even overseas. In that case, the court will only have personal jurisdiction if the absent spouse consents to have the divorce here or is domiciled in California.

Contact Griffith Young for help untangling all these issues. Other jurisdictional issues can arise if your child is living in a different state, which means a California court might not have power to even decide custody. We can review all facts to determine the best place to file.

Did You Receive Divorce Papers While on Deployment?

Nothing is more shocking than getting divorce papers mailed to you while you are stationed outside Encinitas. You could even be in a different country. What can you do? Typically, a spouse who receives papers must respond within 30 days by filing an answer in the court, but servicemembers are offered protections by the Servicemembers Civil Relief Act (SCRA). Military members can request a 90 day stay in writing which will halt the divorce proceedings. That should give you sufficient time to get an attorney and organize how to respond. You might even request additional delay by using the SCRA. Move quickly and contact Griffith Young. Our Encinitas military divorce lawyer can protect your rights.

Negotiating a Divorce Settlement

Servicemembers and their spouses can negotiate a divorce settlement touching on critical issues, such as:

• Child custody
• Child support
• Spousal support (alimony)
• Property division

You can draft and sign an agreement before submitting it to the judge, which will become binding when it is included in the court judgment.

Our Certified Family Law Specialists can help negotiate with your spouse’s legal team for a fair resolution to these issues. Mediation is also helpful for getting each side to really listen to the other and put aside their differences. Negotiating a divorce saves time and money, lowering the temperature and allowing each side to work amicably moving forward.

However, you should have a lawyer who understands military divorce. When settlement fails, then the case will go to court—and you should understand how a judge will analyze your legal rights.

Child Custody in Military Divorces

Child custody in California is decided based on the child’s best interests. Although courts believe that children benefit from meaningful contact with both parents, the key issue is what custody arrangement will promote a child’s health, safety, and welfare. Judges look at many factors, including each parent’s relationship to a child at that point, as well as any history of domestic violence or drug use.

Servicemembers are sometimes at a disadvantage when they divorce if they have been deployed regularly. You might not have established strong bonds with your child or have had any meaningful contact if your child is very young. Nonetheless, you should not automatically lose out on having meaningful time with your children moving forward. Let us review the facts and make an argument that works for you.

Child Support Obligations

Child support obligations are calculated using California’s guidelines which looks at various factors:

• Each parent’s gross income;
• The timeshare percentage of each parent;
• The number of children supported.

Add-ons include childcare or medical expenses, as well as tuition and other educational expenses. These will differ from case to case. A military divorce lawyer is a huge benefit. What qualifies as “gross income” could be different for military families, which can include base pay and allowances. Our lawyers can ensure you receive the child support you need.

Spousal Support in a Military Divorce

California’s spousal support laws also apply to military divorces. A lower earning spouse might request spousal support for the duration of the divorce. A judge can also order a higher-earning spouse to pay alimony after the divorce is finalized to help the lower-earning spouse get on their feet and become self-supporting. Alimony also recognizes the contributions one spouse made to the marriage, such as providing support for their spouse to embark on their career.

If your marriage lasted less than 10 years, you shouldn’t count on receiving support for more than half the duration of the marriage. Someone who was married for six years will likely receive, at most, three years of support. With a marriage lasting 10 or more years, alimony is likely permanent. However, a judge will retain power to modify or sometimes even terminate the alimony in the future.

Dividing Community Property is Complex

California is a community property state. Generally, all assets obtained while married are part of the community and must be divided when you divorce:

• Real estate
• Motor vehicles
• Investments
• Cryptocurrencies
• Digital assets
• Pets
• Money earned while married

Anything you owned before marriage is usually separate property and something you can leave the marriage with. Any gifts or inheritance you individually received while married is typically your separate property, also. Filing for divorce outside California can make a big difference because a court will apply the divorce laws of the state where it sits. If you filed in Illinois, then property division laws are different. In a community property state like California, the split is often 50/50.

Must You Divide Your Military Retirement?

Generally, retirement benefits are community property subject to division in divorce. However, the laws regarding the division are enormously complicated. There is a misconception that a spouse is “entitled” to a portion of the military divorce if they have been married for a certain amount of time. That’s not true. Instead, you only have a right if you are given a portion as part of property division in the divorce. You could agree to this division, or a judge can order it—but there is not some “automatic” right, as experienced divorce lawyers know.

Civilian spouses should work with a divorce lawyer who understands the rules regarding the division of military retirement. We can act to maximize the amount you receive. Likewise, service members benefit from an experienced military divorce lawyer. It might benefit a military spouse to object to a California court’s jurisdiction if a different state would have jurisdiction over the retirement.

Other retirement accounts are subject to division, also, and should not be overlooked.

Frequently Asked Questions about Encinitas Military Divorce

Will my spouse get a default divorce while I am on deployment?

A default divorce occurs when a spouse doesn’t answer a divorce petition. A service member on deployment can ask for a 90-day stay under the SCRA. The stay will pause your divorce. You can request additional stays if your service materially interferes with your ability to participate in the divorce. Contact Griffith Young for assistance getting a divorce “paused.”

Am I entitled to half my spouse’s military retirement if I was married 20 years?

No. The Uniformed Services Former Spouses’ Protection Act (USFSPA) gives state courts power to decide how to treat military retirement benefits in divorce, within certain limits. You should work with a lawyer if you are hoping to receive any portion of a military spouse’s retirement. We can discuss how much to request and whether you will receive payment directly from the government or your spouse. 

Is it too early to meet to discuss divorce?

It’s never too early to talk, even if you are not 100% committed to divorcing. There are steps you might take to protect your legal rights in preparation for divorce, and you should understand your rights. By meeting with us, you are not committing to getting a divorce, and your visit is always confidential.

Speak With Our Encinitas Divorce Lawyer Today

Service members and their families sacrifice for the nation, but sometimes the stress and other factors lead to the breakup of a marriage. The best first step is to hire an experienced lawyer for your case. Call Griffith Young today to speak with an Encinitas military divorce attorney.