Property Division In Military Divorce

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.

Schedule Your Free Consultation

If you have questions about an issue related to your military divorce, please contact the experienced attorneys at Contreras Law Firm. Our team is ready to provide you with honest advice about your options. Call us at 619-908-1495 or send us an email to learn more.