WHY IS THIS IMPORTANT?

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If your spouse/partner is in the military service of the United States, s/he is immune from being served with any civil lawsuit, including a divorce case. This protection is afforded to all military personnel by the Servicemembers Civil Relief Act.

Therefore, if your spouse/partner is either active duty US military or in a Reserve unit that has been called up, parties are in agreement is particularly important. In a military spouse/partner case, instead of serving divorce papers upon him or her in the traditional manner, you need your spouse/partner to sign a particular document that waives his or her military protection and allows the divorce court to proceed in your case.

If your military spouse/partner will not sign that waiver document, you can only proceed in your divorce case by a complex procedure in which you serve divorce papers upon your spouse/partner’s legal officer. That is a procedure in which you definitely need legal advice.

Bear in mind that ‘active duty military’ does not include those on reserve status or those in the National Guard who have not been called up to active status. If there is any doubt as to whether your spouse/partner is on active duty, you can determine whether s/he is or is not on active duty, and therefore protected by the Servicemembers’ Civil Relief Act, by contacting his or her legal officer.

The critical time for the determination of whether your spouse/partner is in the active military service of the United States is immediately after your divorce case has been filed. Right now, only you know when that will be. If your spouse/partner is about to leave active duty military service, you may be able to delay your case until s/he no longer has the immunity provided by the Servicemembers’ Civil Relief Act.

Also bear in mind that your spouse/partner’s active duty military status is not a bar to the filing of your divorce case. It is only a bar to the service of those divorce papers upon your spouse/partner. So you can proceed as soon as you are ready to file your case. That will at least get your case on record and provide you with the protection of the automatic restraining orders that are granted in every California divorce when the case is filed.

Finally, you can of course negotiate with your spouse/partner at any time, before or after you file your case, to try to resolve whatever issue(s) are preventing your military spouse/partner from cooperating by signing the military waiver document.