Does Deployment Count as Separation for Divorce in California?

No. In California, a deployment does not on its own set the date of separation. Under Family Code section 70, that date is when a complete and final break in the marriage occurred, shown by a spouse telling the other they intend to end the marriage and acting consistently with that intent. Military orders alone show neither.

Most people facing this question are living inside a marriage that military life has already stretched thin. A sailor, Marine or soldier home from a long deployment, or a spouse who spent those months alone in San Diego County, may now be talking about divorce and wondering whether all that time apart already "counted." Someone may have said, or a friend may have suggested, that the marriage legally ended the day the deployment began. The answer matters because the date of separation shapes what is community property, including part of a service member's future retired pay.

This page walks through what the date of separation means in California, why deployment is not the same thing, how the Servicemembers Civil Relief Act fits in, and what the date means for property and military benefits.

What the Date of Separation Means Under California Law

Family Code section 70(a) defines the date of separation as "the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: (1) The spouse has expressed to the other spouse the intent to end the marriage. (2) The conduct of the spouse is consistent with the intent to end the marriage."

Both parts must be present. Saying the marriage is over, while carrying on as a married couple, does not meet the test. Living apart, without ever expressing an intent to end the marriage, does not meet it either. The statute requires the words and the conduct together.

Section 70(b) adds that "the court shall take into consideration all relevant evidence." That makes the date of separation a factual question. A court looks at the whole picture of how the spouses spoke and behaved, not at one moment or one act in isolation. In section 70(c), the Legislature also stated that it meant to abrogate two earlier appellate decisions, In re Marriage of Davis and In re Marriage of Norviel, which is part of why the current test focuses on expressed intent and consistent conduct.

The date matters most for property. Under Family Code section 760, except as otherwise provided by statute, property acquired by a married person during the marriage while domiciled in California is community property. "Domiciled" means California is the person's legal home, which can remain true for a service member stationed or deployed elsewhere. Family Code section 771(a) then provides that a spouse's earnings and accumulations after the date of separation are that spouse's separate property. In plain terms, the date of separation is generally where the community property period stops.

One point is easy to get wrong. The date of separation is not the date the property is valued. Under Family Code section 2552(a), the court generally values community assets and debts as near as practicable to the time of trial. Under section 2552(b), on 30 days' notice and for good cause, the court may value all or part of them at a date after separation and before trial. The date of separation decides what belongs to the community; valuation is a separate step.

Why Deployment Does Not Automatically Create a Date of Separation

A deployment is a duty assignment. The service member goes because orders say so, not because the service member has decided to leave the marriage. Physical absence, even a very long one, does not by itself satisfy either part of the section 70 test: it is not an expression of intent to end the marriage, and it is not necessarily conduct consistent with that intent.

That is why a couple can be apart for months or years, through one deployment or several, while the date of separation still has not occurred. A Navy family based in San Diego County may go through repeated cycles of separation without either spouse ever saying, or acting as though, the marriage is over.

Courts look at the totality of conduct. Facts that commonly bear on the question include whether financial support continued, how often and how warmly the spouses communicated, whether bank accounts stayed joint, whether the couple kept making shared plans, and what either spouse said about the future of the marriage.

The reverse is also true. A date of separation can occur while a service member is deployed, if a spouse expresses the intent to end the marriage and that spouse's conduct is consistent with it. Section 70 does not create a rule that a deployment period can never contain the date of separation. It asks what the evidence shows about intent and conduct, wherever each spouse happened to be.

For a spouse who has been holding the household together during a deployment, it can be a relief to learn that the law does not treat that time as the end of the marriage simply because one person was gone.

How the Servicemembers Civil Relief Act Affects Divorce Proceedings During Deployment

The Servicemembers Civil Relief Act (SCRA) is a federal law that provides certain procedural protections to service members in civil legal proceedings, including divorce and child custody cases. Two sections do most of the work in a California divorce.

The stay of proceedings, 50 U.S.C. § 3932. This section applies to a civil action or proceeding, including a child custody proceeding, where the party is in military service, or within 90 days after leaving it, and has received notice of the case. At any stage before final judgment, the court may stay the case on its own motion, and must stay it on the service member's application, for a period of not less than 90 days, if the application includes both of the following: a letter or other communication stating how current military duty requirements materially affect the service member's ability to appear and giving a date when the service member will be available; and a letter or other communication from the commanding officer stating that current duty prevents appearance and that military leave is not authorized at that time. Applying for a stay is not an appearance for jurisdictional purposes and does not waive defenses. A service member may apply for an additional stay, and if the court refuses one, it must appoint counsel for the service member.

Protection against default judgments, 50 U.S.C. § 3931. This section applies where the defendant does not make an appearance. Before entering judgment for the party who filed, the court must require an affidavit stating whether the other party is in military service, with supporting facts, or stating that this cannot be determined. If it appears the defendant is in military service, the court may not enter a judgment until it appoints an attorney to represent that person. Section 3931 also allows a default judgment entered during military service, or within 60 days after it ends, to be reopened if the service member was materially affected by that service in making a defense and has a meritorious or legal defense; that application must be filed no later than 90 days after leaving military service.

The SCRA does not stop a spouse from filing for divorce. It provides procedural tools. A stay pauses the case; it does not change the substantive law, including how the date of separation is decided under section 70. Military OneSource describes the same basic idea: SCRA protections for custody matters let a deployed service member seek a pause when duty affects participation.

Can a Spouse File for Divorce While a Service Member Is Deployed?

Yes. No California law bars filing a petition for dissolution of marriage while the other spouse is deployed. The filing spouse still has to meet the usual requirements, and the deployed spouse still has the federal protections described above.

Residency comes first. Under Family Code section 2320(a), with a narrow statutory exception, a judgment of dissolution generally may not be entered unless one spouse has been a resident of California for six months and of the county where the case is filed for three months immediately before the petition is filed. In San Diego County, the case is heard by the Superior Court of California, County of San Diego. A broader overview of active duty military divorce covers how residency and military moves can interact.

Service of process, meaning formal delivery of the court papers to the other spouse, can be complicated when that spouse is overseas or at sea. If the deployed spouse never appears in the case, section 3931's affidavit and appointed-attorney requirements apply before a default judgment can be entered. Once the service member has notice of the case, section 3932 gives a way to ask for a stay while military duty materially affects the ability to take part.

Timing has its own rule. Under Family Code section 2339(a), subject to certain other sections, a judgment of dissolution is not final to end the marriage until six months have passed from the date the summons and petition were served or the date the respondent appeared in the case, whichever occurs first. Under section 2339(b), the court may extend that period for good cause. The clock does not start at filing. Some couples consider military legal separation instead, which divides property and sets custody without ending the marriage.

When children are involved, deployment raises separate custody questions, explained in deployment and child custody.

Establishing or Contesting the Date of Separation When Deployment Is Involved

Because section 70 makes the date of separation a question of fact, either spouse may propose a date and the other may disagree. In a military marriage, the dispute often centers on a deployment: one spouse points to the day orders took effect, and the other points to a later conversation, or to no clear break at all.

Since section 70(b) directs the court to consider all relevant evidence, the record can be wide. Evidence that may bear on the question includes, among other things:

• Texts, emails and letters, including messages sent during the deployment, that express or contradict an intent to end the marriage.
• Whether the spouses kept filing joint tax returns.
• Whether bank and credit accounts stayed joint, and how money moved between the spouses.
• Whether the service member kept the spouse as a beneficiary on military benefits.
• Whether the couple made joint plans for after the deployment, such as housing, a move or family events.

The sequence of events often matters. If a spouse clearly communicated an intent to end the marriage and acted consistently with it, and the deployment began after that, the evidence may support a date of separation during the deployment. If the couple kept normal married life right up until orders arrived, with no such statement or conduct, the start of the deployment generally does not, by itself, mark a date of separation.

No article can predict how a court will weigh a particular set of facts. The same message can read differently depending on what came before and after it. For a service member trying to remember what was said on a satellite call months ago, it can help to know that the court weighs the full pattern, not one isolated exchange.

What This Means for Community Property and Military Benefits

The date of separation sets the boundary for what the community acquires. Property acquired during the marriage while domiciled in California is community property under section 760, wherever either spouse was physically located. After the date of separation, earnings and accumulations are generally separate property under section 771. Under Family Code section 2550, unless the parties agree in writing or by oral stipulation in open court, or as otherwise provided by law, the court divides the community estate equally.

Military retired pay, the monthly retirement payment a service member receives after qualifying service, is often the largest asset in a military divorce. The portion earned during the marriage, while domiciled in California, may be divided as community property. Federal law shapes how that works through the Uniformed Services Former Spouses' Protection Act (USFSPA), the federal law that lets a state court treat military retired pay as property and provides a way to enforce those orders through the Department of Defense. The USFSPA does not automatically give a former spouse any share. A share exists only if a state court order divides the retired pay under the governing law.

The Defense Finance and Accounting Service (DFAS), the agency that pays military retired pay, can pay a former spouse's share directly only in certain cases. DFAS describes the 10/10 rule: for an order dividing retired pay as property to be enforced under the USFSPA, the spouses must have been married to each other for 10 years or more, during which the member performed at least 10 years of service creditable toward retirement. The 10/10 rule decides only whether DFAS can pay the share directly. It does not decide whether retired pay can be divided. DFAS also explains maximum payment limits and how disposable retired pay is calculated. A former spouse applies for direct payment using DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay.

This is where deployment and the date of separation meet. Months on deployment are months of creditable service. If the date of separation has not yet occurred, those months generally remain within the community period, so a later date of separation generally means a larger portion of retired pay accrued during the marriage.

Military retired pay is also different from VA disability compensation, Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC). Each is a separate payment with its own treatment. Support questions follow their own rules, covered in military child support.

If You'd Like to Talk Through Your Situation

The date of separation in a military marriage rarely comes down to one obvious day. It usually turns on a timeline: when orders arrived, what was said before and during the deployment, how money and accounts were handled, and how that timeline affects the community share of retired pay. A consultation is a place to raise those questions. Military Family Law Advocates practises California family law only, so readers whose divorce belongs in another state's courts may find a local attorney there more useful.

To talk with Military Family Law Advocates about the date of separation, call 888-771-0460 for a confidential consultation.

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