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 that 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. Our experienced team understands the unique challenges military families face and provides tailored strategies for each case.

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 the 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 the power to even decide custody.

We can review all facts to determine the best place to file. Understanding federal law and state laws helps us guide military couples through the entire process and determine where the non-military spouse resides and which court has proper jurisdiction.

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. Active duty servicemembers face unique circumstances that other attorneys may not understand, and we have a deep understanding of how military service obligations affect the divorce process.

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. We offer a free consultation to discuss your case and explain your options.

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. Military life often involves frequent relocations and deployments, which affect custody arrangements and require creative solutions to maintain ongoing contact with children.

Modern Solutions for Military Custody Arrangements

Active duty military personnel face unique challenges when it comes to child custody. Deployment schedules, training exercises, and duty stations can all impact a parent’s ability to spend time with their children. California courts recognize these challenges and may include temporary modifications in custody orders when a parent is deployed.

Virtual visitation through video calls and other technology can help active duty servicemembers stay connected with their children. Custody arrangements for military families often include provisions for how deployment affects parenting time and what happens when the military spouse returns. Our family law attorneys work to create custody arrangements that account for military service while protecting the best interests of the children involved.

Child Support Obligations

Child support obligations are calculated using California’s guidelines, which look 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. Military benefits such as basic allowance for housing (BAH) and basic allowance for subsistence are typically counted as income when calculating child support. Understanding how to properly calculate income for military servicemembers ensures accurate support obligations.

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 the power to modify or sometimes even terminate the alimony in the future. Non-military spouses often sacrifice their own careers to support their military spouse’s service, and spousal support recognizes these contributions.

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 are 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. Asset division in military divorces requires understanding both state laws and federal regulations that govern military benefits and retirement.

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 no “automatic” right, as experienced divorce attorneys 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.

Understanding Military Pensions and the USFSPA

Dividing military benefits requires knowledge of the Uniformed Services Former Spouses Protection Act (USFSPA). This federal law gives state courts the authority to treat military pensions as community property. However, the USFSPA does not require division of military retirement benefits; it simply allows courts to do so.

The non-military spouse may be eligible for direct payment from the Defense Finance and Accounting Service (DFAS) if the marriage lasted at least 10 years and overlapped with 10 years of military service. This is known as the 10/10 rule. However, a former spouse can still receive a portion of military retirement benefits even if the marriage does not meet the 10/10 requirement; they would just receive payments from their ex-spouse rather than directly from DFAS.

Military pensions are not the only military benefits that may be divided. The Survivor Benefit Plan (SBP) provides ongoing income to a former spouse if the military member dies. Understanding these complex rules is important for both military servicemembers and non-military spouses going through divorce in San Diego or anywhere in California.

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.” Active duty military personnel have protections under the Servicemembers Civil Relief Act that prevent default judgments while they are deployed.

Am I entitled to half of my spouse’s military retirement if I was married for 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. The length of the marriage and how much overlap there was with military service affect the division of military pensions, but there is no automatic entitlement.

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. Military couples face other factors that civilian couples may not, and understanding your options early can help you make informed decisions.

How does deployment affect child custody and visitation?

Deployment can significantly impact custody arrangements, but California courts understand the demands of military service. Temporary modifications to custody orders are available when a servicemember is deployed. The non-deployed parent typically receives additional parenting time during deployment, but the original custody arrangement usually resumes when the military parent returns. Courts may also include provisions for virtual visitation and other ways to maintain the parent-child relationship during deployment.

What military benefits count as income for child support calculations?

Basic allowance for housing (BAH), basic allowance for subsistence (BAS), and other regular military benefits typically count as income when calculating child support. California courts look at the total compensation a military servicemember receives, not just base pay. Our divorce attorneys understand how to properly calculate income for military personnel to ensure fair child support obligations.

Can I file for divorce in California if my military spouse is stationed elsewhere?

Yes, you can file for divorce in California if you meet the residency requirements, even if your military spouse is stationed in another state or overseas. California courts can grant a divorce as long as at least one spouse has lived in California for six months and in the county where you file for at least three months. However, determining jurisdiction and where the non-military spouse resides can be complex in military divorces. Our family law attorneys can help you understand which state’s laws will apply and where to file.

Speak With Our Encinitas Military Divorce Lawyers 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. Our law firm has extensive experience handling military divorces throughout San Diego and understands the unique challenges military families face during the divorce process. Call Griffith Young today at (858) 345-1720 to speak with an Encinitas military divorce attorney.