When a military couple divorces, they will contend with many of the same issues as non-military couples. As in any divorce, in California, the parties must divide their shared (community) property. However, there are unique considerations with respect to certain military benefits. Here is more on dividing military benefits in California.
Dividing Military Pension Benefits in California
California military divorces involve both state and federal law. California law governs the division of community property during divorce. This law includes determining if a former spouse can be awarded part of their ex’s military pension. However, military pension benefits fall under the Uniformed Services Former Spouses’ Protection Act (USFSPA). The USFSPA is a federal law that directs how the divided military pension will be calculated and divided.
What is the 10/10 Rule, and How Does it Apply to a Military Divorce?
Servicemembers often refer to the “10/10 Rule” when it comes to evaluating spousal military benefit eligibility. Unfortunately, reference to this “rule” is usually accompanied by the mistaken belief that a military couple has to have been married for ten years before a non-servicemember spouse will qualify to receive any of their active-duty military partner’s pension benefit.
In reality, non-military spouses who have been married to their partners for less than ten years may still be eligible to receive some part of their military spouse’s pension. However, the couple must have been married for at least ten years for the military to garnish the former spouse’s pension. For example, suppose a couple was married for eight years, and the non-military spouse was awarded some of their ex’s military pension during their California divorce. In that case, the military spouse would be responsible for paying their ex their part of the benefit directly rather than the amount being garnished by the military’s financial office.
Dividing Military Retirement Amounts
20 Years or More
When a non-military spouse has been married to a military spouse for twenty years and with twenty years or more of qualifying service credit, they may be eligible to receive half of the servicemember’s pension benefit. This is often referred to as the “20/20/20 Rule.” The first “20” is 20 years of marriage, the second is years of qualifying service (20 years of serviceable credit towards retirement), and the third “20” is the number of years that the marriage overlapped with the term of service. If a spouse meets all of these conditions, they will qualify for half of the servicemember’s pension benefit. In addition, the non-military spouse can also be granted commissary privileges and provided with health coverage.
Less Than 20 Years
Couples who have been married for less than 20 years will have a different calculation. In that situation, the non-service member may be eligible for a portion of the servicemember’s pension. When a service member is retired at the time of divorce, the non-military spouse’s portion is calculated by dividing the number of months the couple was married during their military service by the servicemember’s number of months of eligible service credit at the time of retirement.
Couples who have been married less than twenty years and who divorce while the service member is still active will calculate the marital percentage (months of marriage) and divide it by months of service. This process involves calculating a hypothetical retirement for the servicemember. The calculation can be complex, and it is best to work with an experienced California divorce attorney to estimate a servicemember’s hypothetical retirement and their former spouse’s proportionate share.
What About Active-Duty Credit and Reserve Service?
When calculating a servicemember’s time, it’s important to know that reserve service is calculated differently than active-duty service. While both can count towards military pension benefits, they operate in distinct ways. There are also unique considerations with respect to what constitutes serviceable credit.
Another factor to consider is how military pension benefit awards are stated in final divorce documents. This is because the military’s Defense Finance and Accounting Services (DFAS) will only pay a portion of a servicemember’s pension benefit if the correct language is used in the California divorce court’s order (divorce decree).
California military divorce can be complicated, and it’s important to have accurate advice and information during your case. If you are involved with a California military divorce, you should contact an experienced California divorce attorney. Your lawyer can help you evaluate the terms of your divorce and review your options.
Contact a California Family Law Attorney
The attorneys at the Law Offices of Judy L. Burger are experienced California family law attorneys who can answer your questions about military divorce and other matters. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities. Call us at 415-293-8314 to schedule a private appointment or visit our website.