Military Divorce Process in California: What the Law Requires

A military divorce in California follows the same basic steps as any California divorce: a petition, financial disclosures, a six-month waiting period and a judgment. What changes is the federal layer. Federal law adds rules on pausing the case for military duty, on how retired pay is paid to a former spouse, and on survivor and health benefits.

Most people facing a divorce with military service in the picture arrive with two sets of questions tangled together. A Navy spouse in San Diego County may be wondering whether the case can even be filed here while the member's home of record is Texas, and what happens if PCS orders arrive halfway through. A Marine may be worried that deployment will mean losing ground in a custody case they cannot attend. A former spouse may be trying to understand whether years of moving from base to base translate into any share of retired pay or any health coverage. Each of these is a real question, and each has a state-law answer and a federal-law answer.

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This article walks through the process in the order a California case usually unfolds: where it can be filed, how federal protections for service members work, how retired pay and survivor benefits are handled, what happens to health coverage, how custody works around deployment, and the timeline the court follows.

What Makes a Military Divorce Different from a Civilian Divorce in California

California's Family Code governs the divorce itself. It decides residency, how community property is divided, how custody is set and how support works. A military divorce is still a California divorce, and in San Diego County it is heard by the Superior Court of California, County of San Diego.

Federal law then sits on top of the state case. Four federal programs or statutes come up again and again:

• USFSPA — the Uniformed Services Former Spouses' Protection Act, codified at 10 U.S.C. § 1408, which governs how military retired pay is paid out under a state court order.
• SCRA — the Servicemembers Civil Relief Act, which protects service members whose duties keep them from taking part in a court case (50 U.S.C. §§ 3931–3932).
• SBP — the Survivor Benefit Plan, a federal program that pays a continuing monthly annuity to a designated beneficiary after a retired member's death (10 U.S.C. §§ 1447–1450).
• TRICARE — the federal health care program for service members, retirees and their dependents.

Two other terms appear throughout. DFAS, the Defense Finance and Accounting Service, is the federal office that pays military retired pay, including any share a court order directs to a former spouse. PCS, a permanent change of station, is a military order moving a service member to a new duty location.

The difficulty in these cases is the seam between the two systems. A California judge can divide retired pay, but whether DFAS will pay a former spouse directly is a federal question. A California court can set a custody schedule, but federal law shapes whether the case can move forward while a parent is deployed. Much of what follows is about where that seam falls.

Jurisdiction and Residency: Where a Military Divorce Can Be Filed

Under Family Code section 2320, a California 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. That means a case can be filed in San Diego County only if at least one spouse meets both periods as of the filing date.

Military life makes "resident" harder to pin down than it sounds. A service member has a domicile, the state they treat as their legal home, and many keep that domicile even while stationed somewhere else for years. Physical presence in California on orders is not the same thing as a California domicile. Whether a service member stationed here counts as a California resident for filing purposes depends on the facts, and a civilian spouse living here may meet the requirement independently.

Domicile also matters beyond the filing question. Under Family Code section 760, community property is property acquired during the marriage while domiciled in California. A couple who spent part of the marriage domiciled in another state may have assets California does not treat as community property in the usual way, and the court's power over the service member and the retired pay can depend on domicile and consent.

Because section 2320 measures residency in the period before the petition is filed, PCS orders that move a service member out of California later in the case do not, on their own, change whether that requirement was met when the case began. How a move affects the practical side of the case, such as attendance and custody, is a separate question covered below.

SCRA Protections: Stays of Proceedings and Default Judgment Rules

The SCRA has two protections that matter most in a divorce, and they live in different sections.

The stay of proceedings — 50 U.S.C. § 3932. A stay means the case is paused. This section applies to any civil proceeding, including a child custody proceeding, where the service member is in military service or within 90 days after release from it and has received notice of the case. The statute reads:

"At any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met."

Those conditions are two letters or communications: one from the service member explaining how current military duty materially affects the ability to appear and giving a date when the member will be available, and one from the commanding officer stating that current duty prevents appearance and that military leave is not authorized. Applying for a stay is not an appearance for jurisdictional purposes and does not waive any defense, including a defense of lack of personal jurisdiction (50 U.S.C. § 3932).

A stay is not open-ended. The initial stay is for a period of not less than 90 days. A service member may apply for an additional stay if military duty continues to affect the ability to appear, supported by the same information. If the court refuses an additional stay, it must appoint counsel to represent the service member.

Protection against default judgments — 50 U.S.C. § 3931. A default judgment is one entered when the other side never appears. In any civil proceeding, including custody, where the defendant does not appear, the court must require the filing party to submit an affidavit stating whether the defendant is in military service, with supporting facts, or stating that this cannot be determined. A written statement made under penalty of perjury can satisfy that requirement. If it appears the defendant is in military service, the court may not enter judgment until it appoints an attorney to represent the defendant. If military status cannot be determined, the court may require a bond to protect the defendant (50 U.S.C. § 3931).

Both protections share a purpose: a service member should not lose rights in court because military duty kept them from participating. For a spouse at home trying to move a case forward while the other spouse is underway, these rules can feel like delay. They are also part of why a judgment, once entered, is harder to attack later.

Dividing Military Retired Pay Under the USFSPA

Military retired pay earned during the marriage while the couple was domiciled in California is community property under Family Code section 760. California divides it by court order, and the USFSPA is the federal law that allows state courts to treat that retired pay as divisible property under their own law. It permits division; it does not require it, and it does not hand a former spouse any share on its own. A former spouse's share exists only because a state court order divides the retired pay. More detail on the formula California courts use appears in the article on military retirement division.

Once a California court enters that order, DFAS is the office that acts on it. Under 10 U.S.C. § 1408(b), service of a court order on DFAS's designated agent is effective only if the order is regular on its face, identifies the member (including, if possible, the member's Social Security number), and is accompanied by a certification that the member's rights under the SCRA were observed. An order is regular on its face if it is issued by a court of competent jurisdiction, is legal in form, and shows nothing on its face suggesting it was issued without authority of law. This is one place where the SCRA and retired pay meet: a case handled carelessly on the SCRA side can cause trouble on the payment side.

The 10/10 rule. Federal law sets a threshold, commonly called the 10/10 rule, based on how long the marriage overlapped the member's creditable military service. 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 a shorter marriage. When the threshold is not met, DFAS pays the full amount to the retiree, and the retiree is responsible for paying the former spouse's share under the court order.

Different payments, different rules. Several military payments are easy to confuse, and they are not one "military pension":

• Military retired pay is the retirement pay earned through service and is the payment a court divides under the USFSPA framework.
• VA disability compensation is a separate payment from the Department of Veterans Affairs for a service-connected disability.
• CRDP, Concurrent Retirement and Disability Pay, is a separate payment for certain retirees who also receive VA disability compensation.
• CRSC, Combat-Related Special Compensation, is a separate payment for certain retirees with combat-related disabilities.

How each is treated in a divorce turns on its own rules, and a judgment that lumps them together can create problems years later. The practical effect of these differences on a particular case is a fact-specific question.

The Survivor Benefit Plan and What Happens to It in Divorce

A share of retired pay ends when the retiree dies. The SBP is how a former spouse can keep receiving something after that point. Under 10 U.S.C. § 1450(a), an SBP monthly annuity is paid effective as of the first day after the death of the covered member (or on another day the member may provide for under the statute), and an eligible former spouse can be the beneficiary.

California law gives the divorce court authority over this. Under Family Code section 2610, the court generally must make whatever orders are needed to ensure each party receives their full community property share in any retirement plan, including all survivor and death benefits. That includes ordering a party to elect a survivor benefit annuity for the other party where the plan allows that election, though no court may order a plan to provide increased benefits based on actuarial value. In a military case, that means the judgment can require the member to elect former-spouse SBP coverage. The court order and the actual SBP election are separate steps, and federal rules set deadlines for making or requesting the election after a divorce. Missing them can cost the coverage the order intended.

The base amount. SBP annuities are calculated from a "base amount," and 10 U.S.C. § 1447(6) defines it differently depending on the kind of annuity. For a standard annuity, where the person dies after becoming entitled to retired pay, it is the monthly retired pay (determined without regard to certain statutory reductions) to which the person "was entitled when he became eligible for that pay," or to which the person "later became entitled by being advanced on the retired list, performing active duty, or being transferred from the temporary disability retired list to the permanent disability retired list." For a reserve-component annuity, where the person would have become eligible for reserve-component retired pay but died before age 60, it is the monthly retired pay the person would have been eligible for if age 60 on the date of death, or upon reaching age 60, depending on the designation made. The definition also allows a full base amount or a lesser amount elected under the plan.

When the annuity stops. Under 10 U.S.C. § 1450(b), a former spouse's annuity is paid while the former spouse is living, or until remarriage if the former spouse remarries before age 55. If that later marriage ends by death, annulment or divorce, payment resumes as of the first day of the month the marriage ended. Survivor and other post-divorce benefits are covered further in the article on military spouse benefits after divorce.

TRICARE and Health Coverage After a Military Divorce

For many military spouses, health coverage is the part of the divorce that feels most immediate. As a dependent, a spouse is covered by TRICARE through the service member. That dependent coverage generally ends when the divorce is final, and a court order cannot extend it.

A former spouse may keep TRICARE eligibility in their own right only by meeting federal criteria tied to the marriage and the service. These are commonly called the 20/20/20 rule and the 20/20/15 rule. Both look at three things: how long the marriage lasted, how many years of creditable service the member performed, and how many years the marriage and the service overlapped. A former spouse who meets the 20/20/20 rule may be eligible for continued TRICARE coverage. A former spouse who meets the first two parts but has a shorter overlap may fit the 20/20/15 rule, which provides a transitional period of coverage rather than continued coverage. Remarriage and other coverage can affect eligibility under both.

A former spouse who does not qualify, or whose transitional coverage runs out, may be able to buy temporary continuation coverage through the Continued Health Care Benefit Program (CHCBP). Eligibility and enrollment are governed by federal rules and have their own time limits. Because these rules turn on exact dates of marriage and service, the dates in the member's service record and the marriage certificate matter a great deal.

Child Custody and Visitation When a Parent Is Deployed

California custody decisions rest on the child's best interest. Under Family Code section 3011, the court considers, among other factors it finds relevant, the factors the section lists, including the health, safety and welfare of the child; any history of abuse by a parent or other person seeking custody against the child, the other parent, or certain other family and household members; 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. Military service is not a factor that counts against a parent by itself; the question is how the schedule affects the child.

Under Family Code section 3040(a)(1), when the court grants custody to either parent, it 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. Under Family Code section 3100(a), the court grants a parent reasonable visitation when it is shown that visitation would be in the child's best interest. A broader overview of these rules appears in the article on military child custody.

Deployment and temporary orders. Under Family Code section 3047, when 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 deemed a temporary order made without prejudice. It is subject to review and reconsideration when the parent returns. Section 3047(b)(3)(B) adds that the court may, on the relocating parent's motion, grant reasonable visitation to a stepparent, grandparent or other family member during the absence, but only if it makes the findings that section lists. That visitation is not automatic, and it is not simply the deploying parent's choice. How these orders are built into a schedule is covered in the article on military parenting plans.

Moving the child's residence. 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. The notice goes by mail, return receipt requested, to the other parent's last known address, with a copy to that parent's counsel of record. To the extent feasible, it is given at least 45 days before the move, to allow time to mediate a new custody agreement.

Mediation is required when custody is contested. Under Family Code section 3170, when a request for custody or visitation orders shows those issues are contested, the court must set them 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 given 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, and Family Court Services refers to this person as the Family Court Counselor. Family Court Services explains that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The recommendation carries real weight, and the judge decides.

For a parent with orders in hand, the hardest part is often that the custody case and the deployment calendar do not move at the same speed. The temporary-order rule in section 3047 exists so that a deployment does not permanently rewrite a parent's role.

The California Divorce Timeline: Six-Month Waiting Period and Disclosure Deadlines

Under Family Code section 2339, no judgment of dissolution is final to end the marriage until six months have passed from the date of service of a copy of the summons and petition or the date the respondent appears in the case, whichever occurs first. The clock does not start on the filing date. The court may extend the period for good cause.

Financial disclosure runs alongside that clock. Under Family Code section 2104(f), each spouse 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. Where the petition was served by publication or posting under court order and the respondent responds before a default is entered, the petitioner's deadline is 30 days after the response is filed. In a military case, the disclosures are where retired pay, the Thrift Savings Plan and other service-related assets first appear on paper.

Under Family Code section 2105(a), except by court order for good cause, each party serves a final declaration of disclosure and a current income and expense declaration 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 of disclosure, but under section 2105(d) that waiver must be executed under penalty of perjury, either in open court or by separate stipulation. Income figures in these declarations also feed into support, which is covered in the article on military spousal support.

Valuation. Under Family Code section 2552, the court values community assets and debts as near as practicable to the time of trial. On 30 days' notice by the moving party, the court may for good cause value all or part of them at a date after separation and before trial to accomplish an equal division in an equitable manner.

How a stay changes the clock. The six-month period is a minimum, not a schedule. An SCRA stay under 50 U.S.C. § 3932 pauses the proceedings, and additional stays are possible, so a case involving deployment may take considerably longer than six months to reach judgment.

If You'd Like to Talk Through a Military Divorce Question

A military divorce asks questions that ordinary divorce guides do not answer: whether a California filing works when one spouse's domicile is elsewhere, how a deployment affects the custody calendar, and whether a judgment will actually be paid by DFAS and protect survivor and health benefits. A consultation is a place to raise those questions. Military Family Law Advocates practises California family law only, so questions about another state's courts are better taken to a lawyer licensed there.

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

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