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When you are serving your country far from home, facing the breakdown of your marriage can feel overwhelming. You may wonder whether you need to wait until you return to California to finalize your divorce or if you can initiate the process now.
The good news is that you do not have to put your life on hold. California law has specific provisions designed to help service members handle family law matters, even when they are unable to attend court proceedings physically.
However, navigating these rules requires a clear understanding of both state statutes and federal protections. Experienced divorce lawyers in California can help you manage this process remotely, ensuring your rights are protected while you focus on your duties.
Establishing Jurisdiction: Can I File in California?
The first hurdle in any divorce is “jurisdiction,” which means the court’s legal authority to hear your case. In the civilian world, you typically file where you currently live. For military members, the rules are more flexible to account for your service obligations.
To file for divorce in California, you generally need to meet the standard residency requirement set by California Family Code § 2320: one spouse must have been a resident of the state for six months and of the county (like San Diego or Riverside) for three months immediately before filing.
However, California law recognizes that service members are often stationed here without technically “residing” here permanently, or conversely, are California residents who are temporarily stationed elsewhere. You can generally file in California if:
- You are domiciled in California: This means California is your permanent home of record, even if orders have sent you to Virginia or Japan.
- You are stationed in California: Even if you are not a permanent resident, being stationed in California generally grants the court jurisdiction to dissolve the marriage.
If you are a California resident stationed elsewhere, you can still file your petition in the Superior Court of your home county (e.g., San Diego or Riverside). You do not need to be physically present in the state to initiate the case.
Protecting Your Rights: The Servicemembers Civil Relief Act (SCRA)
One of the biggest fears for deployed service members is that a divorce will happen “behind their back,” resulting in a default judgment that strips them of custody or property rights because they could not show up to court.
Federal law provides a powerful shield against this. The Servicemembers Civil Relief Act (SCRA), found at 50 U.S.C. §§ 3901-4043, offers specific protections for active-duty personnel.
- Stay of Proceedings: If your military duties prevent you from participating in the divorce (for example, you are on a submarine or in a combat zone), you can request a “stay,” or a pause, in the proceedings for at least 90 days. This gives you time to find counsel and prepare your response.
- Protection from Default: A court cannot simply enter a default judgment against an active-duty service member who fails to respond to a divorce petition. The court must first appoint an attorney to represent the service member’s interests or ensure they have actually received notice and chosen not to respond.
While the SCRA protects you, it does not stop the divorce forever. It effectively hits the “pause” button until you can participate.
Dividing the Military Pension: The “10/10 Rule” Myth
For many military couples, the pension is the most valuable asset in the marriage. California is a “community property” state. This means that any portion of the pension earned during the marriage is considered joint property and is generally divided 50/50.
There is a common misconception about the “10/10 Rule.” Many people believe that if they were married for less than 10 years, the non-military spouse gets nothing. This is false.
- Entitlement: Under California law (Family Code § 2550), a spouse is entitled to their community share of the pension regardless of the length of the marriage. Even if you were married for only four years, your spouse is entitled to the portion of the pension earned during those four years.
- Direct Payment: The “10/10 Rule” only applies to how the spouse receives payment under the Uniformed Services Former Spouses’ Protection Act (USFSPA). If the marriage lasts at least 10 years, overlapping with 10 years of military service, the Defense Finance and Accounting Service (DFAS) will send the check directly to the ex-spouse. If the marriage was shorter, the service member must write the check to the ex-spouse each month themselves.
Do I Have to Appear in Court?
In the modern era, and especially in military-heavy jurisdictions like San Diego and Riverside, you rarely need to stand physically in a courtroom for a standard divorce.
- Remote Appearances: Courts now frequently allow video appearances for hearings using platforms like Microsoft Teams (in San Diego) or Zoom (in Riverside).
- Attorney Representation: In most family law hearings, your attorney can appear on your behalf. You can remain at your duty station while your lawyer advocates for you in California.
- Settlement by Mail: If you and your spouse can reach an agreement on all issues (custody, support, and property), you can sign a Marital Settlement Agreement. This document is filed with the court, and the judge can sign your divorce judgment without anyone ever having to set foot in a courtroom.
Why You Need a Local Advocate
Trying to manage a legal battle in California while you are stationed in another time zone is incredibly difficult. You need a local representative who knows the specific judges and rules in San Diego or Riverside. You serve our country; let us serve you.
At Khosroabadi & Hill, APC, we are dedicated to supporting military families through the divorce transition with dignity and clarity. We will handle the legal heavy lifting so you can remain focused on your mission. Contact us at (858) 240-2093 to schedule a consultation.
