Military Divorce Attorney
San Bernardino County | High Desert Military Families

Military Divorce in San Bernardino County

Military families face unique challenges when navigating divorce. From pension division under federal law to custody arrangements that account for deployment, military divorces require specialized knowledge of both California family law and federal military regulations. The High Desert region of San Bernardino County, with its proximity to the former George Air Force Base and continuing military presence, is home to many active duty service members, veterans, and military families.

At Lewis Legal Group, we understand the specific legal issues military families face. As a Certified Family Law Specialist, Heather Lewis provides knowledgeable representation on military divorce matters including pension division, benefits preservation, deployment-related custody issues, and the intersection of state and federal law.

Understanding Military Divorce: Federal and State Law

Military divorces are governed by a combination of California family law and federal statutes, including:

• Servicemembers Civil Relief Act (SCRA) — Provides protections for active duty members in legal proceedings
• Uniformed Services Former Spouses Protection Act (USFSPA) — Governs division of military retirement pay
• California Family Code — Applies community property principles and establishes divorce procedures

This layered legal framework creates complexities that require experienced counsel to navigate effectively.

Jurisdiction and Residency Requirements

Determining where to file a military divorce can be complicated by frequent relocations and legal residency rules. California courts have jurisdiction when:

• Either spouse is a California resident — Meeting the standard 6-month state and 3-month county residency requirements
• The service member is stationed in California — Even if they claim legal residency in another state for military purposes
• California was the couple's last marital domicile — Before separation, even if both have since relocated

Military members can maintain legal residency in their home state while stationed elsewhere, creating potential conflicts. Under the SCRA, a service member cannot be forced to defend a divorce in a state solely because they are stationed there unless they consent or are a legal resident. However, the non-military spouse can file in their state of residence.

For San Bernardino County military families, filing locally often makes sense when either spouse resides here or when the service member is stationed nearby, providing convenient access to court proceedings.

The Servicemembers Civil Relief Act (SCRA)

The SCRA provides important protections to ensure military duties don't prevent service members from defending their interests in legal proceedings.

Stay of Proceedings

Active duty service members can request a stay (postponement) of divorce proceedings if military duties materially affect their ability to participate. The court must grant at least one 90-day stay if the service member requests it and provides:

• A letter or other communication stating that current military duty prevents appearance
• A statement of a date when they will be available

The court may grant additional stays upon subsequent requests. This protection ensures service members are not disadvantaged by proceedings occurring while they're deployed or otherwise unable to participate.

Default Judgment Protections

Before entering a default judgment against a service member who hasn't responded, the court must:

• Receive an affidavit stating whether the respondent is in military service
• Appoint an attorney to represent the service member's interests
• Determine whether military service materially affects the member's ability to defend

These safeguards prevent service members from suffering adverse judgments while serving their country.

Military Pension Division Under the USFSPA

Military retirement pay earned during the marriage is community property in California and subject to equal division. However, the Uniformed Services Former Spouses Protection Act (USFSPA) governs how this division occurs.

The Time Rule Formula

California courts typically use the "time rule" formula to calculate the community portion of military retirement:

(Months of marriage during creditable service / Total months of creditable service) × 50% = Former spouse's share

For example: If a couple was married for 15 years during which the service member accumulated 15 years of a 20-year military career:

• 180 months of marriage during service / 240 total months of service = 75%
• 75% × 50% community property share = 37.5% to the former spouse

This ensures the non-military spouse receives a fair portion of retirement earned during the marriage while protecting the service member's separate property portion earned before marriage or after separation.

The 10/10 Rule

The "10/10 rule" determines whether the Defense Finance and Accounting Service (DFAS) will make direct payments to the former spouse:

• The marriage lasted at least 10 years, AND
• The service member performed at least 10 years of creditable military service during the marriage (the overlap period)

Important clarification: The 10/10 rule only affects the payment mechanism. California courts can divide military pensions regardless of marriage length or overlap. If the 10/10 rule isn't met, the former spouse is still entitled to their community property share—they just must collect it from the service member rather than receiving direct payment from DFAS.

Military Pension Division Orders

Dividing a military pension requires specific language in the divorce judgment and often a separate Military Pension Division Order. This order must include:

• The service member's full name, Social Security number, and service information
• The specific formula for calculating the former spouse's share
• Instructions for DFAS to make direct payments (if the 10/10 rule is met)
• Provisions for Survivor Benefit Plan (SBP) coverage

Proper drafting is critical—errors can delay or prevent the former spouse from receiving their entitled share.

Disability Pay vs. Retirement Pay

A complex issue arises when service members waive military retirement to receive VA disability benefits. Federal law prohibits states from treating disability pay as community property, but California courts have developed methods to address the resulting reduction in the former spouse's share. These cases require careful analysis and often expert testimony regarding the service member's disability rating and retirement elections.

Military Benefits: The 20/20/20 and 20/20/15 Rules

Former military spouses may retain certain benefits after divorce depending on the length of marriage, service, and overlap between the two.

The 20/20/20 Rule: Full Benefits

If all three conditions are met:

• Marriage lasted at least 20 years
• Service member served at least 20 years of creditable service
• At least 20 years of overlap between marriage and military service

The former spouse retains full military benefits indefinitely (or until remarriage before age 55), including:

• TRICARE medical and dental coverage
• Commissary and exchange (PX/BX) privileges
• Access to other base facilities and services

The 20/20/15 Rule: Temporary Benefits

If the marriage and service requirements are met but there were only 15 years of overlap:

• The former spouse receives benefits for one year after the divorce
• After one year, they may purchase TRICARE coverage for up to three additional years

These benefits are automatic based on the marriage and service timeline—they don't require specific court orders, though documenting eligibility in the divorce judgment is prudent.

Child Custody and Deployment

Military service creates unique custody challenges, particularly regarding deployment and relocation. California law provides specific protections to ensure military service doesn't unfairly impact parental rights.

Deployment Protection

California Family Code Section 3047 prohibits courts from using a parent's deployment alone as grounds for permanent custody modification. Key protections include:

• Courts cannot change custody solely because a parent is deployed or stationed elsewhere
• Temporary custody modifications during deployment must revert to the pre-deployment arrangement when the service member returns
• Deploying parents can delegate their visitation time to family members (typically grandparents)
• Courts must provide expedited hearings for custody matters related to deployment
• Service members can testify remotely or by affidavit if unable to appear

Family Care Plans

Military regulations require service members with children to maintain a Family Care Plan designating who will care for children during deployment. These plans can inform custody arrangements and demonstrate the service member's preparation for military obligations.

Custody orders for military families should address:

• Primary custody and visitation schedules during stateside duty
• Temporary arrangements during deployment or extended training
• Communication plans (video calls, phone, email) during separation
• Delegation of visitation to extended family
• Make-up time when the service member returns

Flexibility is essential—military families benefit from detailed parenting plans that anticipate various scenarios while preserving the service member's relationship with their children. Learn more about child custody →

Child Support and Military Income

Calculating child support for military members requires understanding which forms of military compensation count as income.

Income Included in Child Support Calculations

Most military compensation is included:

• Base pay — The service member's basic salary
• Basic Allowance for Housing (BAH) — Tax-free housing allowance
• Basic Allowance for Subsistence (BAS) — Food allowance
• Flight pay, hazardous duty pay, and special pays — Compensation for specialized duties
• Bonuses — Re-enlistment or other bonuses, typically averaged over the contract period

Income Typically Excluded

• Combat pay received in designated combat zones (may be excluded)
• Relocation allowances (typically treated as reimbursement)
• Family separation allowances (often excluded as they offset actual costs)

The net disposable income calculation for military members requires careful analysis because BAH and BAS are tax-free but count as income. California's child support software (DissoMaster) has specific settings for military income.

Enforcement Through Military Allotments

Child support orders against military members can be enforced through automatic military pay allotments, providing a reliable payment mechanism. The military garnishes support directly from the service member's pay and sends it to the California State Disbursement Unit, which then distributes it to the custodial parent.

Spousal Support in Military Divorces

Spousal support calculations in military divorces follow California's standard framework but may involve additional considerations:

• Whether the non-military spouse's career was sacrificed due to frequent relocations
• The military member's earning capacity including benefits and allowances
• The marketable skills of the non-military spouse after years of military life
• Tax treatment of military allowances in support calculations

BAH and other tax-free allowances affect both the service member's ability to pay and the non-military spouse's need for support. Courts consider the total compensation picture when determining appropriate support levels.

Property Division and Military Assets

Beyond retirement pay, military divorces may involve other unique assets:

Thrift Savings Plan (TSP)

The military equivalent of a 401(k), TSP accounts are community property subject to division. Division requires a court order and special paperwork through the TSP administrator.

VA Benefits

VA disability benefits are separate property and cannot be divided. However, they may affect support calculations and must be considered when the service member waives retirement pay to receive disability benefits.

GI Bill Benefits

Post-9/11 GI Bill benefits can be transferred to a spouse or children. While not divisible as property, the decision to transfer benefits may be addressed in settlement negotiations.

Other community assets follow California's standard property division rules, with special attention to assets like military housing and government-issued equipment.

California Legal Resources

• Military OneSource - Divorce Resources
• DFAS - Former Spouse Payments
• Servicemembers Civil Relief Act Information
• California Courts Self-Help: Divorce

Military Divorce Attorney Serving San Bernardino County

We provide military divorce representation throughout San Bernardino County and the High Desert, including:

• Victorville Divorce Attorney — Our office is in Victorville
• Hesperia Divorce Lawyer
• Apple Valley Family Law Attorney
• Adelanto Family Law Attorney — Near former George AFB