Going through a divorce is usually a difficult time for everyone involved. If you have made military service a career, then one of the most highly debated issues in a divorce is often military retirement pay. Career military service members need to know all the facts about their military pension and how the benefits could be divided in a divorce.
After military members have completed 20 years of service, they are eligible for a defined benefit military pension. Under federal law, if you decide to get a divorce, the assets in the pension could fall into division or property.
The Uniformed Services Former Spouses Protection Act (USFSPA) is the federal statute that regulates how military retirement pay is handled in a divorce. California family law courts treat a military pension as dividable property.
The ex-spouse will have their benefits frozen when the marriage is dissolved, and the spouse's portion of the pension is based on the time in service and the member's rank during the marriage.
Depending on how long you were married and whether you were married during your military service, your ex-spouse might be legally entitled to up to half of your pension.
Further, the former spouse could be entitled to receive certain military benefits that can't be negotiated in a divorce. If the ex-spouse was married to the service member for at least 20 years of their service before divorce, they are entitled to lifetime military benefits, including:
- Medical benefits,
- Commissary, and
- Military exchanges.
In a situation where there were less than 20 years but at least 15 years, the former spouse is entitled to one year of medical benefits only if they are not already covered under their employer's health benefits.
There are ways that you can protect your military pension. With the help of a skilled military divorce attorney, you may be able to negotiate a settlement that allows you to retain all or most of your military pension. Our California divorce and family law attorneys will examine this subject in more detail below.
What is the Uniformed Services Former Spouses Protection Act?
As noted above, the USFSPA is a federal law that governs how military retirement pay is handled in a California divorce. It means the family courts can consider military pensions as property under the umbrella of the division of assets.
A few years ago, the USFSPA was changed to allow courts to divide the value of the military pension equally based on the time of retirement. The former spouse's benefits are “frozen” from the date when the marriage was dissolved, and their portion is based on their spouse's:
- Time in military service, and
- Military rank while married.
Under this statute, there are no guarantees the ex-spouse will receive a portion of your military retirement pension. Instead, it only deems the pension as property assets that could be divided during divorce.
In other words, it gives the California family courts the authority to divide the pension in the same manner as other assets.
Readers should note that there is not any amount of time you have to be married for your soon-to-be-ex-spouse to be eligible to receive a part of your military pension in a divorce. However, a long-term military marriage means your former spouse could be entitled to as much as half of your military pension.
What Exactly is the Is the 10/10 Rule?
The 10/10 rule determines when a former spouse is entitled to receive payment directly from the Defense Finance Accounting Service (DFAS).
If the ex-spouse was married to the service member for at least ten years of their military service, then this rule applies, and they will be paid directly by the DFAS, but it's not automatic.
It has to be set into the state court order that divides retirement pay into a divorce. If the marriage was less than ten years, then the issue is decided by the state court.
Is Negotiation Possible in Military Pensions?
Yes. The amount your ex-spouse's military pension could be legally entitled to can be negotiated like other assets that fall under California’s community or marital property laws.
Perhaps you can offer your ex-spouse some property of equal value in exchange for the military pension? In a divorce, military retirement benefits are often one of the most valuable assets, but they don't apply until the military member retires. Thus, negotiating a favorable settlement with your spouse becomes more likely.
In the end, the family law court will set the amount determined by a mutual agreement or litigated. The division of military retirement pensions is often complex due to state and federal laws, so you must retain a California divorce lawyer with experience handling military divorces.
The division of your military pension in a divorce can vary substantially depending on how your property is divided. Under California law, the pension's total value can be divided.
Furman & Zavatsky Can Help You in a Military Divorce
We know that getting a divorce can be a traumatic, life-changing event. If you are a military member, then protecting your pension is often one of the crucial issues if you are going through the divorce process.
If your ex-spouse is entitled to a portion of your military retirement pay, they will continue to receive this payment indefinitely. If they get remarried, it does not impact their award to a part of your benefits. This means negotiation can be crucial.
Our certified family law specialists know how California laws apply to members of the military who are getting divorced. We know how to obtain the best possible outcome.
Our skilled divorce lawyers will work to protect your military pension during the divorce process.
Furman and Zavatsky are Los Angeles divorce and family law attorneys who provide legal representation to people across the state of California. We offer a free case review by phone or use the contact form.