What to Know About Divorce While Deployed

Divorce is a complex legal process that affects finances, property, and family dynamics. Every state has its own laws, making it essential to understand the specific rules that apply to it. When one spouse serves in the military, additional legal challenges arise, especially during deployment.

Facing a military divorce while deployed in California can feel overwhelming. It involves unique legal protections, residency requirements, and custody considerations. Deployment can delay proceedings, impact child custody, and affect the division of military benefits. However, California law and federal protections ensure your rights remain intact.

Let’s know more about key legal aspects, including residency rules, child custody laws, and military pension division.

What Is Military Divorce?

Military divorce is a legal separation or dissolution of marriage involving at least one active-duty, reserve, or retired service member. It complies with both state and federal laws, which govern residency requirements, division of military benefits, and child custody. It is estimated that 62% of combat veterans’ first marriages end in divorce.

Unlike civilian divorces, military divorces in California must comply with laws like the Servicemembers Civil Relief Act (SCRA), which protects active-duty members from default judgments. The Uniformed Services Former Spouses’ Protection Act (USFSPA) governs the division of military pensions. Courts also consider deployment when determining custody and support arrangements.

How Military Divorce Is Different From Civilian Divorces?

Military divorce differs from civilian divorce in several key areas, including legal protections, residency requirements, and the division of benefits.

1. Legal Protections: The Servicemembers Civil Relief Act (SCRA) allows active-duty members to postpone divorce proceedings if military duties prevent participation. Civilian divorces do not have this protection.
   
2. Residency Requirements: Military members can file for divorce in their state of legal residence, their spouse’s state, or the state where they are stationed. Civilian divorces require filing in the state where at least one spouse meets residency requirements.
   
3. Division of Benefits: The Uniformed Services Former Spouses’ Protection Act (USFSPA) governs how military pensions are divided. Civilian pensions follow standard state property division laws.
   
4. Child Custody: Courts cannot deny custody solely due to deployment. California Family Code §3047 allows deployed parents to designate a temporary custodian. Civilian divorces do not require such provisions.
   
5. Support Obligations: Military regulations enforce spousal and child support before court orders are issued. Civilian spouses must seek support through court proceedings.

These differences make military divorce more complex, requiring legal guidance to navigate state and federal laws.

Does Deployment Affect Divorce Proceedings In California?

Yes, deployment directly impacts military divorce. The Servicemembers Civil Relief Act (SCRA) protects active-duty service members from default judgments. This federal law allows deployed personnel to request a stay (postponement) of divorce proceedings if their military duties prevent them from responding.

In California, Family Code §2330.3 reinforces these protections by requiring courts to consider military obligations when scheduling hearings or issuing judgments. The deployed spouse must formally request the stay, providing evidence of deployment and explaining how it affects their ability to participate in the case.

What Happens If Your Spouse Is Deployed?

If your spouse is deployed, the divorce process may be delayed. Under the Servicemembers Civil Relief Act (SCRA), they can request a stay (postponement) if military duties prevent them from responding to legal proceedings. Courts in California must grant this request for at least 90 days, with possible extensions. 

If child custody is involved, California Family Code §3047 protects deployed parents by allowing them to assign temporary custody to a designated guardian. Financial obligations, including child and spousal support, remain in effect, and the military enforces compliance. Deployment complicates communication, but legal protections ensure fairness in the process.

Can You File For Divorce While Deployed?

Yes, service members can file for divorce while deployed. California law requires at least one spouse to meet residency requirements:

• Either spouse must have lived in California for at least six months.
  
• The spouse filing must have lived in the county where they file for at least three months.

Military personnel stationed in California meet these requirements if they have been present for the required period, even if they maintain legal residency in another state. (Cal. Fam. Code §2320)

Steps to File for Military Divorce in California

Military divorce in California follows specific legal procedures. Below is a step-by-step guide to ensure compliance with state and federal laws.

1. Meet Residency Requirements

• Either spouse must have lived in California for at least six months.
  
• The filing spouse must have lived in the county of filing for at least three months (Cal. Fam. Code §2320).
  
• Military members stationed in California can file, even if they claim residency in another state.

2. Prepare and File Divorce Papers

• Complete Form FL-100 (Petition for Dissolution of Marriage) and Form FL-110 (Summons).
  
• File the documents at the Superior Court in the county where either spouse meets residency requirements.
  
• Pay the filing fee (fee waivers available for low-income applicants).

3. Serve the Divorce Papers

• The non-filing spouse (respondent) must be served with the divorce papers.
  
• If deployed, service must follow military rules and international treaties (if stationed overseas).
  
• The Hague Convention may apply for service in foreign countries.

4. Respond to the Petition

• The respondent has 30 days to file a response (Form FL-120).
  
• If deployed, they can request a stay of proceedings under the Servicemembers Civil Relief Act (SCRA).
  
• A default judgment may occur if no response is filed and no SCRA stay is requested.

5. Address Child Custody and Support

• California courts follow Family Code §3047, ensuring deployment alone does not affect custody rights.
  
• Temporary custody can be assigned to a family member or guardian during deployment.
  
• Child support is calculated using California’s guidelines, considering military pay, housing, and allowances.

6. Divide Assets and Military Benefits

• California follows community property laws, splitting marital assets 50/50.
  
• Military pensions are divided under the Uniformed Services Former Spouses’ Protection Act (USFSPA).
  
• The 10/10 Rule allows direct payments from DFAS if the marriage lasted at least 10 years overlapping 10 years of service.
  
• VA disability benefits are not divisible, but courts may consider them for spousal support.

7. Finalize the Divorce

• The divorce can be finalized through:
  
  • Uncontested process (both spouses agree on terms).
    
  • Mediation (if disputes arise).
    
  • Court hearing (if no agreement is reached).
    
• A final Judgment of Dissolution of Marriage is issued.
  
• The mandatory six-month waiting period applies before the divorce is legally finalized.

Filing for a military divorce in California requires careful attention to both state and federal laws. Legal assistance from our family law attorney or military legal services at Moore Family Law Group can help navigate the process.

How Are Military Benefits Divided in a California Divorce?

California is a community property state, meaning assets acquired during marriage are generally divided equally. Military pensions and benefits follow specific rules:

• Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), California courts can treat military retirement pay as community property.
  
• The 10/10 Rule allows direct payment from the Defense Finance and Accounting Service (DFAS) if the marriage lasted at least ten years overlapping with ten years of military service.
  
• A Survivor Benefit Plan (SBP) may be awarded to a former spouse as part of the divorce settlement.

VA disability benefits remain separate property and are not subject to division, but courts may consider them when calculating spousal support.

Can Deployment Delay Divorce Proceedings?

Yes, deployment can delay the divorce process. The SCRA allows service members to request a stay of proceedings for at least 90 days. Courts may grant extensions if military duties prevent participation.

California courts typically resume proceedings once the deployed spouse returns, ensuring both parties have a fair opportunity to present their case.

What Legal Resources Are Available?

Deployed service members can access legal support through:

• Judge Advocate General (JAG) Offices: Provide free legal assistance but do not represent service members in civilian court.
  
• California Military Department Legal Assistance Program: Offers guidance on state-specific family law issues.
  
• Private Family Law Attorneys: Ensure compliance with both California and federal laws.

Some Additional Considerations For Military Divorce While Deployed In California

Military divorce involves both state and federal laws, making the process more complex than civilian divorce. When a service member is deployed, additional legal protections and requirements come into play. Below are key factors to consider when filing for a military divorce in California.

1. Grounds for Military Divorce in California

California is a no-fault divorce state, meaning neither spouse needs to prove wrongdoing to file for divorce. The two legally recognized grounds for divorce are:

1. Irreconcilable Differences – The most common reason, meaning the marriage cannot be saved. No further explanation is required.
   
2. Permanent Legal Incapacity to Make Decisions – One spouse must prove, with medical evidence, that the other is permanently unable to make decisions.

Military service, deployment, or infidelity does not affect divorce grounds. However, deployment may impact how and when the divorce proceedings move forward.

2. Residency Requirements

California law requires at least one spouse to meet residency requirements to file for divorce (Cal. Fam. Code §2320):

• Either spouse must have lived in California for at least six months before filing.
  
• The filing spouse must have lived in the county of filing for at least three months.
  
• Military members stationed in California for at least six months meet the residency requirement, even if their official home of record is another state.

A deployed service member can still file for divorce in California if they were a legal resident before deployment. If neither spouse meets California’s residency requirement, they may need to file in the service member’s state of legal residence.

3. Property divisions

California follows community property law, meaning all assets and debts acquired during marriage are split 50/50 unless both spouses agree otherwise. However, military benefits have specific rules:

• The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows California courts to divide military pensions.
  
• Under the 10/10 Rule, if the marriage lasted at least 10 years, overlapping with 10 years of military service, the Defense Finance and Accounting Service (DFAS) can send direct pension payments to the former spouse.
  
• If the marriage does not meet the 10/10 Rule, the spouse may still receive a portion of the pension, but the service member must make direct payments.

• VA disability benefits are not divisible in divorce.
  
• However, courts can consider disability pay when determining spousal or child support.

• The TSP (military retirement savings plan) is subject to division under California’s community property rules.
  
• Real estate, vehicles, savings accounts, and debts are also divided based on community property laws.

4. Child custody

California courts prioritize the child’s best interests when determining custody. Military service alone is not a reason to deny custody or visitation rights.

• California Family Code §3047 prevents courts from using deployment as a reason to deny or change custody orders.
• A deployed parent can assign temporary custody to a family member or trusted guardian.
• Custody orders are often modified before deployment to provide stability for the child.
• Courts typically restore pre-deployment custody arrangements when the service member returns.
• If the non-military spouse objects, they must prove why the previous custody order is no longer in the child’s best interests.
• Courts may allow virtual visitation (video calls, emails) to maintain the parent-child relationship during deployment.
• A deployed parent can also designate a family member to have visitation rights on their behalf.

Child support remains in effect during deployment and is based on California’s child support guidelines, which consider military income, including base pay, allowances, and bonuses.

5. Spousal Support

Spousal support (alimony) is not automatically granted in California. Courts consider several factors, including:

• Length of the marriage – Longer marriages (10+ years) increase the likelihood of support.
  
• Each spouse’s income and earning ability – Military pay, Basic Allowance for Housing (BAH), and other benefits are considered.
  
• Impact of military service on the spouse – If the civilian spouse sacrificed education or career opportunities due to military relocations, they may receive support.

• The military enforces spousal support before a court order through service branch regulations.
  
• Once a court order is in place, non-payment can result in military disciplinary action, including garnishment of wages.

California courts determine spousal support based on state guidelines, but military rules ensure financial obligations are met during and after divorce.

FAQs

Should I Hire a Lawyer While Deployed or Wait?

You should hire our military divorce lawyers while deployed to safeguard your legal rights from the start. Delaying legal counsel can risk missing critical deadlines, especially in cases involving custody, asset division, or support.

Can I Get a Divorce While Stationed Overseas?

Yes, you can get a divorce while stationed overseas, as long as you or your spouse meet your home state’s residency requirements.

What rights and protections do I have under the Servicemembers Civil Relief Act (SCRA)?

Under the SCRA, active-duty service members have the right to delay civil legal actions, including divorce proceedings. The act protects you from default judgments if you’re unable to respond due to deployment. It also offers financial protections such as interest rate caps and lease termination rights during service.

What should I do if I receive divorce papers while deployed?

If you receive divorce papers while deployed, immediately inform your commanding officer and contact your local Judge Advocate General (JAG) office. Requesting SCRA protections can grant a temporary delay in court deadlines. Our military divorce attorney can guide your next steps and ensure your response is legally sound.

Why is it important to work with a military divorce attorney?

A military divorce attorney understands the complexities of military law, including retirement division, VA benefits, and jurisdictional issues. They ensure your rights are protected in areas unique to military life, such as custody during deployment and military pension calculations. Their experience helps secure a fair, regulation-compliant outcome.

Get Help with Your Military Divorce Today

Moore Family Law Group offers experienced legal support for military divorces in California. Whether you’re deployed or stationed locally, our attorneys handle custody, pensions, and benefits with care and precision. Contact us now for a confidential consultation.