Several federal laws are relevant procedurally when one or both spouses in a dissolution proceeding are members of the military. Although not every Act applies to every case, it is good practice to be aware of the federal laws and procedures impacting military divorce. To get more information, advice, and legal representation, you should hire the best military divorce attorney in San Diego to take over your case.
Optional Notification of Status
Although it is not required, there is a form that parties may complete to notify the court of their former or current military status. The form is the MIL-100 form, titled Notification of Military/Veteran/Reserve/Active Status. Filing this form with the court helps put the court on notice to address legal issues for which military status is relevant.
Even if you choose to file this form, you must still be sure to file all additional forms needed if you file a military deployment-based support modification request or apply for a stay under the Servicemembers Civil Relief Act.
Service Members Civil Relief Act
If the person who is served with a Petition for Dissolution, known as the respondent, is in active military service, the court is required to stay the proceedings for 90 days in two instances.
First, the court must stay the proceedings if a defense cannot be presented without the appearance of the respondent. Second, if counsel has been unable to reach the respondent, despite “diligent efforts,” the court must stay the proceedings because counsel has not been able to determine if there is a valid defense to be brought. The Act gives courts discretion to grant stays in other instances as well.
Under this Act, a default judgment cannot typically be entered against a respondent who is in active military service. Only when counsel has been appointed to protect the interests of the servicemember, or the servicemember chooses to waive their rights under the Act, can a default judgment be entered against a respondent who is in active military service.
If active military personnel choose to participate in family law proceedings, courts have an obligation to ensure they are properly represented. If the respondent is on active military duty and wishes to waive their rights under the Act, they can file an FL-130, marking box 1(c), attached to an FL-130(A).
Uniformed Services Former Spouses’ Protection Act
The Uniformed Services Former Spouses’ Protection Act details the procedures state courts are required to follow related to the division of property and enforcement of support orders. Historically, state courts did not have the authority to treat military retirement pay as community property. However, since February 1, 1983, state courts do have the authority to divide military retirement pay according to community property laws.
As a limitation, the Uniformed Services Former Spouses’ Protection Act prohibits reopening final judgments that were made before June 25, 1981, to divide military retirement benefits that were not adjudicated. Dividing military retirement pay can be very complex and requires careful attention to the type of pay, the jurisdiction of the court, and the specific language in any orders made by the court.
Electronic Appearance Exception
If your ability to appear at a custody or visitation hearing is impacted because of military deployment, mobilization, or temporary duty, the court must allow you to present evidence and testimony through electronic means.
These rules may vary by locality, but all courts must allow your electronic appearance in some way, such as by telephone, Zoom, Skype, etc. This ensures that your due process rights are protected, and you are not at a disadvantage due to your military status.
How can you find the best military divorce attorney in San Diego?
Military divorce is a process that requires a specialized understanding of the system and the resources available to help service members and their spouses. This is where our experts at JWB Family Law come in.
Our dedicated attorneys have a wealth of knowledge and experience in family law matters and military divorces. We understand that this, like any type of divorce, is an emotional and difficult process, so we strive to support you throughout the proceedings while making sure your rights and interests are fully protected.
Give us a call today and set up your appointment!
