Divorce During Deployment: What California Law Means for Service Members and Military Spouses

A California divorce can be filed and move forward while a service member is deployed. Deployment does not pause the case on its own. Federal law lets the deployed spouse ask the court for a temporary pause, protects against judgments entered without a fair chance to respond, and shapes how custody and military retired pay are handled.

Most people facing this are in one of two places. Some are service members who learned about a divorce petition from thousands of miles away and are wondering whether a court back home can decide things without them. Others are spouses in San Diego County or elsewhere in California who know the marriage is over but are unsure whether filing now is even allowed, or fair, while their partner is overseas. Both are trying to find out what the rules actually are before anything gets decided.

This page walks through those rules in order. It covers the federal protections, how papers are served, what happens to custody, and how retired pay and survivor benefits fit in.

What Deployment Changes — and What It Does Not — in a California Divorce

California law governs the divorce itself. The California Family Code decides whether the marriage can be dissolved, how community property is divided, how custody is set and how support is ordered. In San Diego County, those cases are heard by the Superior Court of California, County of San Diego. Generally, a judgment of dissolution requires that one spouse has been a California resident for six months and a resident of the filing county for three months before the petition is filed (Family Code section 2320).

Federal law then layers on top. Deployment here means an extended assignment away from the home station, often overseas, under military orders. One federal custody statute gives it a specific meaning for its own purposes: movement or mobilization for longer than 60 days and not longer than 540 days under orders that are unaccompanied, do not authorize dependent travel, or otherwise do not permit family members to move to that location (50 U.S.C. § 3938(e)).

Two federal statutes matter most:

• The Servicemembers Civil Relief Act (SCRA), 50 U.S.C. § 3901 and following sections, is a federal law that protects servicemembers in civil court cases while military duty keeps them from taking part.
• The Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408, is the federal law on paying military retired pay in compliance with state court orders.

What deployment does not do is just as important. It does not stop a spouse from filing, and it does not freeze the case automatically. It creates rights the deployed spouse can use, along with practical problems around notice, participation and parenting time. A broader overview of active duty military divorce covers how these pieces connect.

The Servicemembers Civil Relief Act: Stays, Default Protections, and How They Work

Two separate sections of the SCRA do most of the work in a divorce, and each has its own conditions.

The stay of proceedings — 50 U.S.C. § 3932. A stay of proceedings means the court pauses the case temporarily. This section applies to any civil action or proceeding, including a child custody proceeding, where a party is in military service (or within 90 days after release from 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 servicemember's application, for not less than 90 days, if the application includes two things:

• a letter or other communication stating how current military duty materially affects the servicemember's ability to appear, and a date when the servicemember will be available; and
• a letter or other communication from the commanding officer stating that current military duty prevents appearance and that military leave is not authorized at the time of the letter.

Applying for a stay is not an appearance for jurisdictional purposes and does not waive any defense, including a defense based on lack of personal jurisdiction (50 U.S.C. § 3932(c)).

Protection against default judgments — 50 U.S.C. § 3931. A default judgment is a judgment entered because one side never responded. Before entering judgment for the plaintiff in a covered case, the court must require an affidavit stating whether the defendant is in military service. Where the defendant is in military service, the court must grant a stay of at least 90 days, on application of counsel or on its own motion, if there may be a defense that cannot be presented without the defendant, or if counsel, after due diligence, has been unable to contact the defendant or determine whether a meritorious defense exists. If a default judgment is entered during military service, or within 60 days after release, the court must reopen it on the servicemember's application when military service materially affected the ability to defend and there is a meritorious or legal defense. That application must be filed no later than 90 days after release from military service.

A stay is not permanent. Once it ends, the case picks back up. The protections belong to the servicemember; the spouse who is not in military service does not apply for a section 3932 stay on that basis. A servicemember can also waive SCRA rights, and certain waivers are effective only in a written agreement executed during or after the period of military service (50 U.S.C. § 3918).

Service of Process When a Spouse Is Deployed

A California divorce starts with service, meaning formal delivery of the summons and petition to the other spouse. Deployment does not remove that requirement. California's court self-help guide on serving divorce papers explains that the filing spouse cannot serve the papers personally, that the court needs proof service was done correctly, and that the served spouse then has 30 days to respond. The same guide notes that someone in another state can always be served by personal service, or by registered or certified mail with return receipt requested.

Serving a spouse stationed overseas raises practical questions the self-help page does not fully answer. How it is done depends on where the servicemember is and what the law permits there. Careful proof of service matters because a court looks closely at whether a servicemember actually had notice.

Service also starts an important clock. Under Family Code section 2339, a judgment of dissolution does not 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. The court may extend that period for good cause.

Once served, a servicemember whose duty materially affects the ability to take part may apply for the stay described above. Both spouses also have disclosure duties. Each serves a preliminary declaration of disclosure either with the petition or response, or within 60 days of filing it, unless the parties extend that time by written agreement or the court extends it by order (Family Code section 2104(f)).

Custody and Visitation When a Parent Is Deployed

If you are in immediate danger, call 911.

Family Code section 3047 sets the core rule. When a parent with sole or joint physical custody or visitation receives temporary duty, deployment or mobilization orders that require a move a substantial distance away, or that otherwise materially affect the ability to exercise custody or visitation, any necessary change to the custody order is deemed a temporary custody order made without prejudice. That order is reviewed when the parent returns. On review, the law presumes custody reverts to the order in place before the change, unless the court finds that reverting is not in the child's best interest. Federal law points the same way: a temporary custody order based solely on deployment must expire no later than the period the deployment justifies, and deployment or possible deployment cannot be the sole factor in a permanent best-interest decision (50 U.S.C. § 3938).

For a parent abroad, the worry is often that time away will cost them the relationship with their child. These rules are built to keep a deployment change temporary.

Other people may sometimes fill the gap. On the deploying parent's motion, the court may grant reasonable visitation to a stepparent, grandparent or other family member only if it makes the findings Family Code section 3047(b)(3)(B) lists. That visitation is never automatic. More detail appears in the page on visitation during deployment.

The court decides custody under the best-interest standard of Family Code section 3011. The factors it considers include the child's health, safety and welfare; any history of abuse by a parent or person seeking custody; and the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances. A parent receives reasonable visitation when it is shown that visitation would be in the child's best interest (Family Code section 3100(a)).

If the court finds a parent perpetrated domestic violence within the previous five years, a rebuttable presumption arises that awarding that parent sole or joint physical or legal custody is detrimental to the child (Family Code section 3044(a)). It may be rebutted only by a preponderance of the evidence. Neither the preference for frequent and continuing contact with both parents nor the preference for contact with the noncustodial parent may be used to rebut it, in whole or in part (section 3044(b)(1)).

A custody order may also, if the court does not consider it inappropriate, require a parent to notify the other parent before changing the child's residence for more than 30 days, unless there is prior written agreement to the removal. To the extent feasible, the notice is given at least 45 days before the move, to allow time to mediate a new custody agreement (Family Code section 3024).

When custody or visitation is contested, the court must set the contested issues for mediation (Family Code section 3170(a)). Domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council (section 3170(b)). In San Diego County, that mediation is child custody recommending counseling with the court's Family Court Services. Under Family Code section 3183(a), except as provided in section 3188, the mediator may, consistent with local court rules, submit a recommendation on custody or visitation if the mediator first gave the recommendations in writing to the parties and their attorneys, including counsel for any minor children, before the hearing. The mediator is then called a child custody recommending counselor. The judge makes the decision. Related pages cover military parenting plans and military child custody.

Dividing Military Retired Pay Under the USFSPA

The USFSPA does not hand a former spouse anything by itself. It governs how the federal government pays retired pay in compliance with a court order. A former spouse's share comes from a state court order dividing the retired pay under the governing law.

In California, that law is community property. Except as otherwise provided by statute, community property is property acquired during the marriage while domiciled in California (Family Code section 760). Military retired pay earned during the marriage while the couple was domiciled here can fall within that definition. The court values the community estate as near as practicable to the time of trial, and on 30 days' notice may, for good cause, use a date after separation and before trial (Family Code section 2552).

Payment runs through DFAS, the Defense Finance and Accounting Service, the federal agency that administers military pay. A former spouse applies for direct payment using DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay.

The 10/10 rule is one of the USFSPA's conditions for that direct payment. It looks at how much of the marriage overlapped with creditable military service. It decides only whether DFAS can pay the former spouse's share directly. It does not decide whether retired pay can be divided.

Military retired pay, VA disability compensation, Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC) are different payments. Each is treated differently, and they are not one "military pension." How each applies turns on the specific facts and governing law. The page on military spouse divorce walks through retired pay division further.

Spousal Support and the Survivor Benefit Plan During and After Deployment

California courts can address support while a case is pending, including when one spouse is deployed. Support in a military divorce follows the California Family Code, not a separate military standard. A stay may delay hearings, which is one reason the timing of support requests matters to both spouses. The related topic of military child support follows California's guideline.

Access to a lawyer is part of the same picture. In a dissolution or legal separation case, the court must ensure each party has access to legal representation, including early in the case, by ordering one party, if necessary based on income and needs, to pay the other's reasonable attorney's fees and costs (Family Code section 2030). When fees are requested, the court makes findings on whether an award is appropriate, whether there is a disparity in access to funds, and whether one party can pay for both.

The Survivor Benefit Plan (SBP) is a separate issue. It is a federal program that pays a monthly annuity to an eligible beneficiary after the member's death, and a divorce judgment may address former-spouse coverage. The annuity is paid effective as of the first day after the member's death, or another day the member may provide under the statute (10 U.S.C. § 1450(a)). Eligible beneficiaries include an eligible surviving spouse or eligible former spouse. The base amount used to figure the annuity depends on the kind of annuity involved (10 U.S.C. § 1447(6)). More on what continues after divorce appears under military spouse benefits after divorce.

Resources for Service Members and Military Spouses in California

Knowing where reliable information lives can make an uncertain stretch feel more manageable, especially across time zones.

• Military OneSource, a Department of Defense program, publishes a page on child custody considerations for military families. It describes family care plans, which service members are required to keep up to date, and summarizes SCRA rights in custody matters. Its Servicemembers Civil Relief Act page explains that only written SCRA waivers signed during or after military service are effective.
• California Courts self-help offers procedural guidance, including the serving divorce papers page cited above.
• Installation legal assistance offices provide legal help to eligible service members and families. They are government offices.

This site is not affiliated with, endorsed by, or connected to the U.S. Department of Defense, any military branch or the federal government. None of these resources is part of, or connected to, Military Family Law Advocates.

If You'd Like to Talk Through a Divorce During Deployment

A divorce during deployment brings two systems together, and the timing of one often affects the other. A consultation can cover topics such as timing and method of service, whether an SCRA stay may be available, the terms of any existing custody order, and how the dates of marriage, service and domicile bear on retired pay. Military Family Law Advocates practises California family law only, so questions centred on another state's courts may call for a different first call.

To talk with the firm about divorce during deployment, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.