How to Get a Military Divorce in California – Full Guide

 

Getting a divorce is always a difficult process, but it can be especially complicated when one or both spouses are in the military. If you're in the military and facing a divorce in San Jose, CA, it's important to understand your rights and responsibilities under both military and California state law. This article will provide you with a comprehensive guide to handling a divorce in San Jose, CA while serving in the military.

Understanding California Divorce Law

Before diving into the specific considerations for military divorces, it's important to have a basic understanding of California divorce law.

Grounds for Divorce in California

In California, there are two grounds for divorce: irreconcilable differences and incurable insanity. Irreconcilable differences means that there are irreparable breakdowns in the marriage that cannot be resolved. Incurable insanity means that one spouse was insane at the time of the marriage and remains incurably insane.

Residency Requirements

To file for divorce in California, you or your spouse must have been a resident of the state for at least six months prior to filing. You must also have been a resident of the county where you plan to file for at least three months.

Division of Property and Debts

California is a community property state, which means that all property and debts acquired during the marriage are considered equally owned by both spouses. This includes income, assets, and debts. In a divorce, community property is divided equally between the spouses.

Child Custody and Support

California courts make custody and visitation decisions based on the best interests of the child. This may involve considering factors such as the child's age, health, and relationship with each parent. Child support is also based on the child's needs and the income of both parents.

Military Divorce Basics

In addition to California state law, there are several important federal laws that apply to military divorces.

The Servicemembers Civil Relief Act (SCRA)

The SCRA provides certain legal protections to servicemembers who are involved in civil lawsuits, including divorces. This may include delaying court proceedings while the servicemember is on active duty, reducing interest rates on loans, and preventing default judgments.

Jurisdictional Issues

One of the biggest challenges in a military divorce is determining which court has jurisdiction to hear the case. Generally, the servicemember's state of legal residence will have jurisdiction. However, if the servicemember is stationed in a different state, that state may also have jurisdiction.

Military Pensions and Benefits

Military pensions and other benefits may be subject to division in a divorce. The Uniformed Services Former Spouses Protection Act (USFSPA) allows states to treat military pensions as community property and divide them between the spouses. However, there are certain restrictions and requirements that must be met.

Filing for Divorce While in the Military

If you're in the military and facing a divorce in San Jose, CA, there are a few additional considerations to keep in mind.

Filing Requirements

To file for divorce in California, you will need to complete several forms, including a Petition for Dissolution of Marriage, a Summons, and a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (if you have children). You will also need to pay a filing fee, unless you qualify for a fee waiver.

Where to File

You can file for divorce in the county where you or your spouse lives or in the county where you last lived together. If you're in the military and stationed in California, you may be able to file in San Jose, even if you're not a California resident.

Responding to a Divorce Petition

If your spouse has filed for divorce and you're in the military, it's important to respond to the petition as soon as possible. Under the SCRA, you may be able to delay the proceedings for up to 90 days if you are on active duty. You may also be able to appoint an attorney to represent you in your absence.

Hiring a Divorce Lawyer

If you're in the military and facing a divorce in San Jose, CA, it's highly recommended that you hire a divorce lawyer who has experience with military divorces. A lawyer can help you understand your rights and responsibilities under both military and California state law, and can guide you through the divorce process.

Why You Need a Lawyer

Divorces involving military personnel can be especially complicated, due to the unique legal and logistical challenges involved. A lawyer can help you navigate these challenges and ensure that your rights and interests are protected throughout the divorce process.

Finding a Military Divorce Lawyer in San Jose, CA

To find a military divorce lawyer in San Jose, CA, you can start by searching online or asking for referrals from friends, family, or fellow servicemembers. Look for a lawyer who has experience with military divorces and who is familiar with the local court system.

FAQs

Q : Can I file for divorce in San Jose, CA if I'm not a California resident?

A : Yes, you may be able to file for divorce in San Jose if you're stationed in California.

Q : How long does it take to get a divorce in San Jose, CA?

A : The length of time it takes to get a divorce in San Jose, CA can vary depending on the specific circumstances of your case.

Q : Can I delay the divorce proceedings if I'm on active duty?

A : Yes, under the SCRA, you may be able to delay the proceedings for up to 90 days if you're on active duty.

Q : Will I have to divide my military pension in a divorce?

A : It's possible, but the specific requirements and restrictions will depend on several factors, including the length of your marriage and the specific provisions of the USFSPA.

Q : Should I hire a lawyer for my military divorce in San Jose, CA?

A : Yes, it's highly recommended that you hire a divorce lawyer who has experience with military divorces in order to protect your rights and interests throughout the process.

Conclusion

Military divorces in San Jose, CA require a thorough understanding of both military and state laws. By taking the necessary steps and seeking the guidance of an experienced divorce lawyer, you can ensure that your rights are protected throughout the process. If you're looking for legal support, turn to the trusted team at Affordable and Express Legal. As a top-rated Santa Clara family law firm, we offer affordable and efficient legal services to help you achieve a favorable outcome in your divorce case. Contact us today at affordableandexpresslegal.com to schedule a consultation.

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