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 military duty.
Contact Law Offices of Makupson & Howard to speak with our family law attorneys.