San Diego Military Divorce Lawyers

Last updated on April 4, 2025

All couples face challenges in their relationships. Still, military service members and spouses face innumerable struggles in their relationships. The nature of their work, the challenges of being apart during deployment and other issues associated with military life are unlike anything a civilian married couple experiences.

The duty and sacrifices made by service members and their families mean high levels of stress, which leads to higher divorce rates. In San Diego, home to several military bases such as Naval Base San Diego, Marine Corps Air Station Miramar and Naval Base Coronado, these challenges are even more pronounced because they are more common.

At the Contreras Law Firm, our San Diego military divorce lawyers represent service members and their spouses in all aspects of a military divorce. We understand the unique emotional and legal complexities involved and provide personalized support throughout, ensuring that all aspects of the military divorce are managed with care and precision.

Custody In Military Divorce In California

Custody and visitation arrangements in military divorce cases in California can be particularly complex due to the unique challenges faced by military families, such as frequent relocations and deployments.

The primary consideration in military child custody decisions is the best interests of the child. Factors include the child’s age, health, emotional ties to each parent, the parent’s ability to care for the child, and any history of family violence or substance abuse. The court also considers the impact of the military parent’s service on their ability to provide a stable environment for the child.

Military parents are required to have a Family Care Plan, which outlines who will care for their children during deployments or other absences. This plan must be current and often outlines custody and visitation arrangements.

There are two types of custody:

Legal custody: Joint legal custody means both parents share the responsibility and authority to make important decisions about their child’s upbringing, including education, health care and religious instruction. This arrangement allows both parents to be involved in significant aspects of their child’s life, regardless of the military parent’s deployment or relocation.

Physical custody: Physical custody refers to circumstances where the child lives and their day-to-day care. In cases where one parent has primary physical custody, the child primarily resides with that parent, while the other parent has visitation rights. This arrangement can be particularly beneficial for military families, as it provides stability for the child while allowing the military parent to maintain a meaningful relationship through visitation.

Parents will often maintain shared legal custody even if children primarily reside with a nonmilitary spouse or another family member if both parents serve.

California Family Code Section 3047

California has specific legal protections for military parents under Family Code Section 3047. This addresses the unique challenges military parents face, such as deployments and relocations. The key provisions include:

• Temporary orders: Any modification of custody orders to accommodate a parent’s deployment or mobilization is deemed a “temporary order without prejudice.” This means the changes are not permanent and are intended to address the military parent’s temporary absence.
• Reversion to pre-deployment orders: Upon the military parent’s return from deployment, there is a presumption that the custody order will revert to the arrangement in place before the deployment unless the court determines that it is not in the child’s best interest.
• Frequent and continuing contact: The court must consider orders to ensure that the relocating parent can maintain frequent and continuing contact with the child during deployment.

To discuss the specific details of this law, contact the military child custody lawyers at the Contreras Law Firm.

Visitation Rights Can Be Flexible

Given the unpredictable nature of military service, visitation schedules must be flexible. Courts often create detailed visitation plans accommodating the military parent’s deployment and training schedules. Similar to parenting plans in that they mandate the child’s time with parents, visitation plans outline provisions for visitation, including virtual visitation (e.g., video calls) when the military parent is deployed.

California courts may also order make-up visitation to compensate for time missed due to military obligations. This ensures the military parent maintains a meaningful relationship with the child despite service-related absences.

Relocation and custody modifications

Frequent relocations are a common challenge for military families. If a military parent needs to relocate due to a change in duty station, they must seek court approval to modify the custody arrangement. The court will consider how the move will affect the child’s well-being and whether it is in their best interests.

SCRA offers legal protections to service members

The Servicemembers Civil Relief Act (SCRA) provides a range of financial and legal protections for active-duty service members, including members of the National Guard and reservists on active-duty orders. Here are two key benefits to those planning to divorce:

• Postponement of proceedings: If their military duties prevent them from appearing, service members can request a 90-day stay of civil court and administrative proceedings.
• Protection from default judgments: Courts must appoint an attorney to represent service members in civil proceedings if they cannot appear due to military service. This helps prevent default judgments against service members who cannot defend themselves in court.

This can be particularly important in divorce and custody cases, as it ensures that the military spouse or parent is not disadvantaged due to their service.

Child Support In Military Divorce In California

Child support in military divorce cases in California is calculated based on the service member’s income, which includes basic pay, allowances and any special pay. California courts use statewide guidelines to determine child support amounts, considering the parents’ total income and the children’s needs. The service member’s income includes basic allowance for housing (BAH) and basic allowance for subsistence (BAS), which are factored into the child support calculation.

Each military branch has its own guidelines for interim family support when a state court has not yet established a support order. However, these military guidelines are generally less than what state guidelines provide. The court will also consider any payments the service member makes for the children’s health insurance or work-related day care. It’s important to note that military pay can fluctuate based on duty station and deployment, which may necessitate periodic adjustments to the child support amount.

In California, the child’s best interests are the primary consideration when determining child support. The court aims to ensure that the children maintain a standard of living similar to what they would have had if the parents had remained together. Given the unique challenges military families face, such as frequent relocations and deployments, it is crucial to work with a California military divorce attorney who understands these complexities and can advocate effectively on your behalf.

Spousal Support In Military Divorce In California

Spousal support, also known as alimony, is determined in military divorce cases in California based on several factors, including the length of the marriage, the rank and income of the service member, and the earning potential of the nonmilitary spouse. California courts have the authority to issue spousal support orders to ensure that the nonmilitary spouse can maintain a standard of living similar to what they had during the marriage.

Military benefits, such as BAH, are considered income and can influence the amount of spousal support awarded. The transient nature of military life can impact the nonmilitary spouse’s ability to maintain steady employment, which is considered when determining spousal support.

Enforcing spousal support can be challenging due to frequent relocations and deployments. However, specific provisions in divorce decrees and military garnishment systems can help ensure that support payments are made directly from the service member’s pay. Working with an attorney experienced in military divorce can help navigate these challenges and ensure that spousal support is fair and enforceable.

Property Division And USFSPA

Marital property division in military divorce cases in California can be particularly complex due to the unique nature of military benefits and pensions. Under California law, military retirement benefits are community property, which means they are subject to division between spouses upon divorce. This division is based on the premise that the nonmilitary spouse has contributed to the military member’s career, warranting a share of the retirement benefits accrued during the marriage.

The division process must comply with 1982’s Uniformed Services Former Spouses’ Protection Act (USFSPA), which allows state courts to treat military retirement pay as property rather than income. California’s division of military retirement benefits typically follows the “time rule formula.” This formula considers the duration of the marriage and the time the service member spent in active duty to calculate the portion of the retirement pay considered community property. For example, if a couple was married for 10 years, and during eight of those years, one spouse was actively serving in the military, then the retirement pay earned during those eight years would be subject to division.

Several factors can influence how the courts divide military retirement, including:

• The length of the marriage
• The service member’s rank
• The total years of service

Disability pay, which isn’t considered community property, is not subject to division. Additionally, the Survivor Benefit Plan, which provides ongoing benefits to military personnel’s survivors, can be a critical element during property division. Given the complexity of these issues, working with an attorney experienced in military divorce is essential to ensure a fair division of property.

Military Pension Division In A California Divorce

In California, military pensions are generally community property, which means they are subject to division between spouses upon divorce. As with other community property, this division acknowledges that the nonmilitary spouse has contributed to the military member’s career, thus warranting a share of the retirement benefits accrued during the marriage. The division process must comply with the USFSPA, which allows state courts to treat military retirement pay as property rather than income. Important rules include:

The Time Rule Formula

California typically uses the “time rule formula” to calculate each spouse’s share of the military retirement benefits. This formula considers the duration of the marriage and the time the service member spent in active duty to determine the portion of the retirement pay considered community property.

The 10/10 Rule

The USFSPA includes the 10/10 rule, which states that for orders dividing retired pay as property to be enforced under the USFSPA, the member and former spouse must have been married for at least 10 years during which the member performed at least 10 years of military service creditable toward retirement eligibility. If the marriage and military service overlap for less than 10 years, the military spouse must make the payments directly rather than through the Defense Finance and Accounting Service (DFAS).

Other Special Considerations Involving USFSPA

Here are other essential details to know about USFSPA:

Court jurisdiction

For a California court to have the authority to divide military retired pay, it must have jurisdiction over the service member. This jurisdiction can apply if the service member resides in California for reasons other than military assignment, is domiciled in California or consents to the court’s jurisdiction. This ensures the court has a legitimate connection to the service member before ruling on retirement pay.

Direct payment to spouses

The USFSPA provides a mechanism for directly paying the awarded portion of military retired pay to the former spouse through the Defense Finance and Accounting Service (DFAS). For the former spouse to receive direct payments, the marriage must have lasted at least 10 years, during which the service member performed at least 10 years of creditable military service (the 10/10 rule). Payments must begin no later than 90 days after the service member becomes entitled to retired pay.

Duration of benefits

The right to receive payments under the USFSPA generally lasts until either party dies or the former spouse remarries. This ensures that the former spouse receives financial support as long as the service member remains unmarried.

Survivor benefits plans

The USFSPA also allows for the election of Survivor Benefit Plan (SBP) coverage for former spouses. This coverage provides continued income to the former spouse after the military retiree’s death. The costs and benefits under this option are identical to those for current spouse coverage, ensuring that the former spouse receives the same level of financial protection.

California military divorce decrees commonly include provisions for SBP coverage to ensure the former spouse’s financial security. The court can order the service member to maintain SBP coverage for the former spouse, and failure to comply with this order can result in legal consequences. To ensure that a former spouse remains covered under the SBP, the service member or retiree must submit a properly executed DD Form 2656-1, signed by both them and the former spouse.

Given the complexities involved in electing SBP coverage and dividing military retirement pay, it is advisable to seek legal assistance. An attorney experienced in military divorce can help maintain SBP coverage and protect the former military spouse’s financial future.

There Are Other Important Military Benefits

There are other significant benefits to consider during divorce proceedings:

Health care (Tricare) under the 20/20/20 rule

Divorce can impact military benefits such as health care. Tricare coverage for the nonmilitary spouse typically ends upon divorce, but there are exceptions. For example, under the 20/20/20 rule, if the couple was married for at least 20 years, the service member served for at least 20 years, and there was at least a 20-year overlap between the marriage and military service, the former spouse may retain Tricare benefits.

Housing allowance (BAH)

The Basic Allowance for Housing (BAH) is considered income and can influence the amount of spousal and child support awarded. The court will consider the service member’s BAH when calculating support obligations. However, once the couple finalizes the divorce, the nonmilitary spouse will no longer be eligible for BAH.

Commissary and exchange privileges

Commissary and exchange privileges typically end for the nonmilitary spouse upon divorce. However, similar to Tricare, if the marriage meets the 20/20/20 rule criteria, the former spouse may retain these privileges.

Military Divorce Attorneys Answering Your Questions About Divorce And The Military

At the Contreras Law Firm, our family law attorneys have helped many military families in the San Diego area resolve their child custody, child support, and division of property issues in legal separations or divorce. Here, they answer some of the questions that they often hear. For answers to your specific questions, we invite you to schedule a confidential and free initial consultation.

My spouse is deployed in a foreign country. Can I still file for divorce?

Yes. You can still move forward with ending your marriage in most cases. To understand what you can and cannot do now, you should talk to us about what is happening in your case. Our experienced military divorce lawyers can provide detailed information regarding the process and what you need to do to get things moving.

Will my wife get half of my military pension?

This is where things start to get complicated. Our divorce lawyers will need to review your situation to learn more about your case and provide you with an accurate answer. Specific factors – such as where you were stationed, the place you claimed as an official residence, as well as the starting and potential ending point of your marriage will all be important items to examine to determine what may happen with the division of your retirement assets and your marital property.

Why You Need An Experienced Military Divorce Attorney On Your Side

When you or your spouse is in the military, obtaining a divorce is much more complicated than it is for civilians. As highlighted here, many more complex issues require careful analysis of the particular laws that apply to your situation.

Helping Those Stationed At San Diego Military Installations

With the number of military installations in San Diego, it’s not a coincidence that the number of couples going through military separations or divorce is high. We provide guidance and support to military families from:

• The Naval Base in San Diego
• The Naval Base Point in Loma
• The Naval Base in Coronado
• The Marine Corps Recruit Depot in San Diego
• The Marine Corps Air Station in Miramar
• The Marine Corps Base Camp in Pendleton
• The San Diego U.S. Coast Guard Sector

If you or your spouse serve in the military and are stationed in San Diego, we can help. Our military divorce lawyers provide legal guidance and support founded on our experience and deep understanding of the intricate nuances of military divorce laws in California. Let us protect your rights and best interests.

Consult A San Diego Military Divorce Lawyer For Free

Military divorces require a deeper understanding of family law in California and federal law to accurately serve military personnel and spouses. Contact the San Diego office of the Contreras Law Firm today by calling 619-908-1495 or emailing us to schedule your free consultation with a military divorce attorney.