A service member’s military pension is an extremely valuable asset and is divisible in the case of a military divorce just like any other asset in a standard California divorce, provided the court has jurisdiction over the proceedings.
This is why it is very important that each spouse involved in a military divorce understands how California divorce courts handle the division of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan.
In order to divide a military pension, the court has to have the authority to do so from the military spouse’s consent or legal residence in a state.
Jurisdiction to Divide Military Retirement
Congress passed the Uniformed Services Former Spouses’ Protection Act (USFSPA) in 1982 to permit state courts to choose how or whether to divide military retirement funds upon a divorce, legal separation, or annulment.
In order to divide a military pension, the court has to have the authority to do so from the military spouse’s consent or legal residence in a state. Simply being stationed in a state does not constitute residency, and consent doesn’t have to be expressed verbally. The court can reasonably assume consent from both participants in the divorce proceedings.
As long as a court has jurisdiction, any state in question (including California) can and well divide a service member’s military retirement, regardless of the marriage’s length. The authority of California’s divorce court in regards to dividing military retirements is not limited by the length of a marriage.
The 10/10 Rule in Military Divorce
The USFSPA states that the Defense Finance and Accounting Service (DFAS) will pay the former spouse’s share of the military retirement if the marriage and creditable military service overlap for at least a 10-year span (the 10/10 rule). If the marriage and military service overlap for less than 10 years, the military spouse has to cut the check rather than the DFAS.
Although there have been periodic attempts to modify or eliminate the 10/10 rule, the chances of a major change to the law are slim because of the pushback from advocacy groups and the general public.
More Information:
The Military Pay & Benefit website run by the Office of the Secretary of Defense describes the types of military retirement and has a retirement calculator for each type.
The DFAS Military Retirement home page has a wealth of information about military retirements, directly from the source! The Bohm Wildish & Matsen team can also provide valuable information and context to military divorce stipulations. Giving them a call guarantees your military divorce will be handled as delicately and effectively as possible.
