Veteran Divorce Lawyer in California — Military Family Law Representation

If you are a veteran, service member or military spouse divorcing in California, the case runs on California community property and custody law, with federal law layered on top. Military retired pay can be divided only by a state court order, deployed service members have federal protections against rushed or default judgments, and VA disability pay is treated differently from retired pay.

Most people searching for a veteran divorce lawyer in San Diego County are carrying more than one question at once. A marriage is ending, and it is ending inside a system of DFAS statements, retirement points, disability ratings, orders that can move a parent across the world, and children who have already lived through a deployment or two. The civilian divorce pages you may have read today rarely say whether the retired pay counts, whether a disability rating changes anything, or what happens to custody if orders come in the middle of the case. This page walks through those issues in the order they tend to come up for military families in San Diego County, Orange County, Los Angeles County and the rest of California.

What Makes a Veteran Divorce Different Under California Law

California is a community property state: under Family Code section 760, property acquired during the marriage while domiciled in California is generally community property, and Family Code section 2550 directs the court to divide the community estate equally, unless the parties agree otherwise in writing or by stipulation in open court. Domicile matters in military families, because a service member may be stationed in San Diego County while legally domiciled in another state, or the reverse.

Federal law then governs several pieces that have no civilian equivalent:

• The Uniformed Services Former Spouses' Protection Act (USFSPA) is the federal law that lets state courts treat military retired pay (the monthly pay a member receives after retiring from service) as divisible in divorce, and that controls how a former spouse can be paid under a court order.
• The Servicemembers Civil Relief Act (SCRA) is the federal law that protects people in military service from having civil cases, including divorce and custody cases, move forward against them while duty keeps them from responding.
• The Defense Finance and Accounting Service (DFAS) is the Department of Defense agency that pays military retired pay and processes court-ordered payments to former spouses.
• The Survivor Benefit Plan (SBP) is the federal program that pays a continuing monthly annuity to a designated beneficiary after a retired member's death.
• VA disability compensation is a monthly payment from the Department of Veterans Affairs for service-connected disabilities. It is not retired pay.

Two more terms appear throughout: Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC), which are separate programs that restore some or all of the retired pay a retiree waives to receive VA disability pay. Retired pay, VA disability compensation, CRDP and CRSC are four different payments with different legal treatment. Treating them as one "military pension" is one of the most common sources of confusion in a veteran divorce.

Military income also shows up in child support. Family Code section 4058 includes "military allowances for housing and food" in a parent's gross income, which is how the basic allowance for housing (BAH) and the basic allowance for subsistence (BAS) enter the calculation.

For San Diego County families, these cases are heard by the Superior Court of California, County of San Diego. The same federal rules apply in Orange County and Los Angeles County courts; the California procedure is the same statewide.

Dividing Military Retired Pay Under the USFSPA

The federal statute governing payment of retired pay under court orders is 10 U.S.C. § 1408. It does not hand a former spouse anything on its own. A former spouse's share of military retired pay comes only from a state court order dividing that retired pay under the governing law, which in a California case means the community property rules described above. Without a court order, there is no share for DFAS to pay.

The point that trips up many military families is the 10/10 rule. This is a federal threshold, measured by how long the marriage overlapped the member's creditable military service, and it decides one thing: whether DFAS can pay the former spouse's share directly. It does not decide whether retired pay can be divided. A California court can divide retired pay earned during the marriage even when the overlap falls short of the threshold. In that situation, the former spouse's share is generally paid by the retired member rather than by DFAS.

When direct payment is available, a former spouse applies to DFAS using DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay, together with the court order. The wording of that order matters a great deal, which is why the topic gets its own treatment in the guide to the military retirement division order.

Because retired pay can later be reduced when a retiree waives part of it to receive VA disability compensation, the order dividing retired pay and the separate question of disability pay are closely connected, even though they are legally distinct. That connection is the subject of the next section.

VA Disability Compensation and Divorce

VA disability compensation is governed by a different federal statute than retired pay. Under 38 U.S.C. § 5301, VA benefit payments "shall not be assignable except to the extent specifically authorized by law," and are generally exempt from the claims of creditors and from "attachment, levy, or seizure by or under any legal or equitable process whatever," either before or after the veteran receives them. That language is why VA disability compensation cannot be treated as if it were simply another piece of the retired pay. The VA disability compensation page covers that benefit on its own; the rest of this section focuses on how it interacts with retired pay in a divorce.

The complication is how the two payments interact. According to DFAS's page on the VA waiver and retired pay, the law requires a military retiree to waive a portion of gross retired pay, dollar for dollar, by the amount of VA disability compensation; DFAS calls this the VA waiver or VA offset. DFAS describes two programs Congress created so that eligible retirees can recover some or all of the waived amount:

• CRDP is a monthly payment that restores retired pay for those with service-connected disabilities who waive retired pay for VA disability pay. DFAS states that a retiree does not need to apply for it.
• CRSC is a special entitlement for combat-related disabilities. DFAS states that a retiree must apply to their branch of service to receive it.

DFAS's CRDP and CRSC frequently asked questions adds two details that matter in a divorce. A retiree eligible for both programs cannot receive both at the same time. And if a retiree switches to CRSC, DFAS warns that "Former Spouse deductions" may be suspended if not enough retired pay remains to pay them. DFAS's separate CRDP page explains that special rules apply to retirees who were retired for disability.

For a former spouse whose share is paid from retired pay, and for a retiree whose disability rating is changing, these rules can change what actually arrives each month. How a California court treats each of these payments depends on the facts and the governing law, and it is an area where a general article can only describe the landscape, not predict an answer.

SCRA Protections: Stays of Proceedings and Default Judgment Rules

A stay of proceedings is a court-ordered pause: the case does not move forward while the stay is in place. Under 50 U.S.C. § 3932, the SCRA stay applies to any civil action or proceeding, including a child custody proceeding, where the servicemember 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 servicemember's application for at least 90 days if the application includes two things: a letter or other communication explaining how current military duty materially affects the servicemember's ability to appear and giving a date when the servicemember 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. A servicemember who receives that initial stay may apply for an additional stay based on the continuing material effect of military duty on their ability to appear, and if the court refuses to grant the additional stay, it must appoint counsel to represent the servicemember in the case. Applying for a stay is not an appearance for jurisdictional purposes and does not waive the servicemember's defenses.

A default judgment is a judgment entered when the other side never responds. The SCRA's protection against default judgments is in 50 U.S.C. § 3931, and it applies to any civil action or proceeding, including a child custody proceeding, in which the defendant does not appear. Before entering judgment, the court must require the party asking for it to file 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 absent party is in military service, the court may not enter judgment until it appoints an attorney to represent that servicemember.

For a spouse at home in San Diego County whose partner is deployed, these rules can feel like delay. For the deployed member, they are what keeps a divorce or custody order from being decided without a chance to be heard. Understanding these rules early in the case can help both the at-home spouse and the deployed member anticipate how the timeline may be affected, and the military divorce checklist gathers them alongside the other first-stage issues.

The Survivor Benefit Plan in a California Divorce

The Survivor Benefit Plan provides a monthly annuity to a member's beneficiaries after the member's death. Under 10 U.S.C. § 1450(a), the annuity is paid effective as of the first day after the death of the covered person (or on another day the person may provide for under the statute). The beneficiaries the statute lists include an eligible surviving spouse or an eligible former spouse, surviving dependent children in equal shares if the spouse or former spouse is dead or ineligible, dependent children where the member elected child-only coverage, and certain special needs trusts for a disabled dependent child.

The annuity is calculated from a base amount, and 10 U.S.C. § 1447(6) defines that term differently depending on the kind of annuity involved. For a standard annuity, where the person dies after becoming entitled to retired pay, it refers to the monthly retired pay to which the person was entitled when first eligible, or later became entitled through advancement on the retired list, further active duty, or transfer from the temporary to the permanent disability retired list. Other kinds of annuity use other definitions, so the base amount in a given case depends on which kind applies.

SBP matters in divorce because a share of retired pay ends when the retiree dies. A divorce judgment or court order may address whether a former spouse is to receive SBP coverage, and that question is separate from the division of retired pay itself. What a former spouse can keep after divorce, including SBP, is covered in more depth in the page on military spouse benefits after divorce.

Custody and Visitation When a Parent Is Deployed

If you are in immediate danger, call 911.

California courts decide custody under the child's best interest. Family Code section 3011 directs the court to consider, among other relevant factors, the health, safety and welfare of the child and any history of abuse by a parent or other person seeking custody. Under Family Code section 3040, custody may be granted to both parents jointly or to either parent, and in granting custody to either parent the court considers, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with sections 3011 and 3020. Family Code section 3100(a) directs the court to grant a parent reasonable visitation when it is shown that visitation would be in the child's best interest.

Mediation is required when custody or visitation is contested. Under Family Code section 3170, the court must set the contested issues for mediation. 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, this 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 to the court on custody or visitation if the mediator has first provided the recommendations in writing to the parties and their attorneys, including counsel for any minor children, before the hearing; a mediator who does so is called a child custody recommending counselor, and Family Court Services refers to this person as the Family Court Counselor. Family Court Services states that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides.

Deployment orders create temporary changes. Under Family Code section 3047, if a parent with custody or visitation receives temporary duty, deployment or mobilization orders that require a move a substantial distance away or otherwise materially affect that parent's ability to exercise custody or visitation, any necessary change to the custody order is treated as a temporary order made without prejudice, subject to review when the parent returns. Section 3047 also allows the court, on the motion of the parent who is relocating, to grant reasonable visitation to a stepparent, grandparent or other family member during the absence, but only if the court makes the specific findings the statute lists. That visitation is not automatic, and it is not the deployed parent's choice alone. The military parenting plans page covers these temporary orders in detail.

Relocations, including a PCS move (a permanent change of station, meaning orders reassigning a member to a new duty location), can raise notice issues. Under Family Code section 3024, if the court does not consider it inappropriate, a custody order may 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.

Emergency orders have a high threshold. Under Family Code section 3064(a), the court generally will not grant or change a custody order ex parte (on short notice, without a full hearing) unless there is a showing of immediate harm to the child or immediate risk that the child will be removed from California. Immediate harm includes, among other things, a parent's acts of domestic violence that are of recent origin or part of a continuing pattern, and recent or continuing sexual abuse of the child, and the court must consider a parent's illegal access to firearms and ammunition.

Domestic violence findings shift the analysis. Under Family Code section 3044, a finding that a parent seeking custody perpetrated domestic violence within the previous five years against the other parent, the child, the child's siblings or certain related persons creates a rebuttable presumption that awarding that parent sole or joint physical or legal custody is detrimental to the child's best interest. The presumption may be rebutted only by a preponderance of the evidence, and 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. A broader treatment of these rules appears in the guide to military child custody.

California Divorce Timelines and Disclosure Rules for Military Cases

The six-month waiting period runs from the date the summons and petition are served or the date the respondent appears in the case, whichever occurs first (Family Code section 2339). It does not run from the filing date, and the court may extend it for good cause. When a respondent is deployed, an SCRA stay can lengthen the overall case even though the waiting period itself is fixed by statute.

Disclosure is mandatory in every California divorce, military or civilian:

• Preliminary declaration of disclosure. Under Family Code section 2104, each spouse serves it with the petition or response, or within 60 days of filing it; the parties can extend that time by written agreement, or the court by order.
• Final declaration of disclosure. Under Family Code section 2105(a), the final declaration and a current income and expense declaration are due before or at the time the parties enter into an agreement resolving property or support issues other than temporary support, or, if the case goes to trial, no later than 45 days before the first assigned trial date. The parties may mutually waive the final declaration, but that waiver must be executed under penalty of perjury in open court or by separate stipulation.

For a military family, disclosure is where retirement statements, leave and earnings statements, VA rating letters and Thrift Savings Plan balances surface. Valuation follows a firm rule: under Family Code section 2552, the court values assets and liabilities 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.

Two reimbursement doctrines are easy to confuse. Under Family Code section 2640, a spouse who put separate-property money into community property, such as a down payment or principal reduction, is reimbursed for that contribution, unless that spouse made a written waiver or signed a writing with the effect of a waiver. The Moore/Marsden apportionment addresses the opposite situation: community money paying down a loan on one spouse's separate-property home, which can give the community an interest in that home.

How Military Family Law Advocates Approaches These Cases

Military Family Law Advocates is a California family law firm whose practice centers on divorce and family-law matters that military service complicates: retired pay division under the USFSPA, SBP, the interaction of VA disability compensation with retired pay, SCRA protections, and custody during deployment and relocation. The firm practises California family law only, which means the issues on this page are addressed as they arise in California courts.

San Diego County is the firm's primary focus, with cases heard by the Superior Court of California, County of San Diego. The firm also serves military families in Orange County, Los Angeles County and elsewhere in Southern California, and in courts across the state where California law governs the divorce.

The firm is not affiliated with, endorsed by or connected to the U.S. Department of Defense, any military branch or the federal government.

Talk Through a Veteran Divorce in California

A veteran divorce turns on dates and documents that a general article cannot see: when the marriage began and when service began, where the family was domiciled, whether a disability rating exists or is changing, whether CRDP or CRSC is in the picture, and whether orders are likely to move a parent during the case. Those facts decide which of the rules on this page carry the most weight, and readers who want to understand how these rules apply to their own facts may find it useful to speak with a California family law firm that handles military divorce matters before choices about retired pay, SBP or custody become fixed in a judgment. When you are ready, you can call Military Family Law Advocates at 888-771-0460 to arrange a confidential consultation about your situation in San Diego County or elsewhere in California.