California legislators have tried very hard for almost 50 years to make
divorce a fair and relatively quick legal process for California’s residents.
However, when one spouse (or both spouses) is an active member of the
military, federal issues arise and must be followed. These federal issues
can be quite complicated and difficult to navigate legally.
In 1940, Congress enacted the
Servicemembers Civil Relief Act. The laws in the Act prevent military personnel from being sued while in
active military service of their country and for up to a year after active
duty. It also covers U.S. citizens serving with allied military forces
for the duration of a military conflict involving the United States. The
Act itself applies to spouses on active military duty involved in divorce actions.
When someone petitions for divorce in California, the petitioner must provide
the other spouse with the documentation (called
service of process). This documentation allows the other spouse to respond to the petition
and present his/her side of the cause of action. However, when the other
spouse is on active duty in the military, how does the petitioner provide
the documentation to him or her? (Keep in mind that not only must the
other spouse be served, but there must be written proof that the documentation
was provided and when – called
proof of service.) How does the petitioner get on a military base or Navy vessel to serve
the military spouse? What if the military base is in a foreign country?
These are very technical issues, and not always easily resolved.
In some cases, the rules of the
Hague Convention will determine service of process. There are over 30 member countries
involved in the
Hague Convention, and often mailing the documents to the central authority in one of those
countries will provide sufficient for service. (The
Hague Convention is a series of treaties between the 30-member countries allowing for the
service of process of legal documents from one country to another without
the use of diplomatic or consular channels.)
In other cases, when children are involved, Congress has enacted laws making
federal agencies and uniformed service members responsible for facilitating
the legal process.
Further complications arise when active military personnel are involved
in divorce proceedings. The issues regarding distribution of property,
spousal support, child support, and especially military pensions are all
subject to federal law, even where state law provides for answers.
As anyone can see, when family codes, laws, and regulations involve federal
and even international codes, laws, and regulations, divorce procedures
are too technical for a non-legal person to understand. Therefore, it
would be in that person’s best interest to find a legal authority
knowledgeable in divorce when one (or both) of the spouses is on active
Contact Law Offices of Makupson & Howard to speak with our family law attorneys.