Military Prenuptial Agreements in California: What Service Members and Their Partners Need to Know

Yes. A service member, or the person a service member plans to marry, can sign a prenuptial agreement in California: a written contract made before marriage that takes effect on the wedding day and sets how property and earnings will be treated. It can address future military retired pay and Survivor Benefit Plan intentions, but it cannot reduce a child's right to support or override federal rules on military benefits.

Most people facing this question are engaged, and perhaps stationed in San Diego County or about to be. A wedding date may already be set around a deployment or a move to a new duty station. One partner may have years of service behind them and a retirement on the horizon. The other may be wondering what giving up a claim to that retirement would actually mean. The difficulty is that two bodies of law meet here. California decides what a prenup can do. Federal law decides how military pay and benefits work, and a private contract cannot rewrite those rules.

This page walks through how those two systems fit together. It covers what California requires before a court will enforce a prenup, and what the agreement can and cannot reach. It also explains where military retired pay, the Survivor Benefit Plan, TRICARE and the Servicemembers Civil Relief Act come in.

What a Military Prenuptial Agreement Is — and What It Can Do

California calls a prenup a "premarital agreement." Family Code section 1610(a) defines it as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." There is no separate military version in the law. A "military prenup" is an ordinary California premarital agreement whose terms deal with military pay and benefits.

The governing law is the Uniform Premarital Agreement Act, Family Code sections 1600 through 1617. Family Code section 1500 confirms that the property rights spouses have under statute "may be altered by a premarital agreement or other marital property agreement." Without an agreement, California's default rules apply. Under Family Code section 760, property acquired by a married person during the marriage while domiciled in California is community property, except as otherwise provided by statute. Domicile means the place a person treats as their permanent home, which for a service member is not always the state where they are stationed.

Military couples face questions civilian couples do not. The first is retired pay: the monthly pay a member receives after retiring from service. Its division in divorce is governed by a federal law called the Uniformed Services Former Spouses' Protection Act (USFSPA). The second is the Survivor Benefit Plan (SBP), a federal program that pays a monthly annuity to a beneficiary after a retiree's death. The third is TRICARE, the military health care program. These questions often arise around a PCS, or permanent change of station, meaning an official move to a new duty station. The agency that actually pays retired pay is the Defense Finance and Accounting Service (DFAS).

A prenup can speak to some of these. It can state whether future retired pay will be treated as separate property, and it can record the couple's intentions about SBP. It can also protect property each person brings into the marriage. It cannot reduce a child's right to support. Custody is decided by a court when the question arises, not settled in advance by contract. And where federal law sets the rules for a benefit, such as TRICARE eligibility, a private agreement cannot change them.

California's Requirements for a Valid Prenuptial Agreement

Family Code section 1611 sets the basic form: a premarital agreement "shall be in writing and signed by both parties," and it is enforceable without consideration. Consideration means something given in exchange. Under section 1613, the agreement becomes effective upon marriage. After the wedding, it may be amended or revoked only by a written agreement signed by both spouses (Family Code section 1614).

Voluntariness is where most of the procedural rules live. Under Family Code section 1615(c), an agreement is deemed not voluntarily signed unless the court finds, in writing or on the record, all of the following:

• The party challenging it had independent legal counsel when signing. Alternatively, after being advised to get counsel, that party expressly waived counsel in a separate writing. The advice to seek counsel must come at least seven calendar days before the final agreement is signed.
• For an agreement signed on or after January 1, 2020, that party had at least seven calendar days between first seeing the final agreement and signing it, whether or not they had a lawyer. This does not apply to nonsubstantive amendments that do not change the terms. Agreements signed between January 1, 2002, and January 1, 2020, follow a similar seven-day rule tied to the advice to seek counsel.
• If that party had no lawyer, they were fully informed of the agreement's terms and basic effect, and of the rights and obligations they were giving up. They were also proficient in the language of the explanation and of the agreement. That explanation must be put in writing and delivered before signing. The unrepresented party must also sign a document saying they received it and who provided it.
• The agreement and those writings were not signed under duress, fraud or undue influence, and neither party lacked capacity.
• Any other factors the court deems relevant.

Separately, Family Code section 1615(a) makes an agreement unenforceable if the challenging party proves one of two things. The first is that they did not sign voluntarily. The second is that the agreement was unconscionable when signed, meaning grossly unfair, and that before signing all three of these applied to them: (A) they did not receive fair, reasonable and full disclosure of the other party's property or financial obligations; (B) they did not voluntarily and expressly waive, in writing, any further disclosure; and (C) they did not have, and reasonably could not have had, adequate knowledge of the other party's property or financial obligations. Under section 1615(b), unconscionability is decided by the court as a matter of law.

Military schedules press directly on these rules. A deployment order or a PCS move can shrink the weeks before a wedding. The seven-day periods are minimums, not targets. The final factor, "any other factors the court deems relevant," means a court is not limited to counting days.

Military Retired Pay, the USFSPA, and What a Prenup Can Address

The USFSPA, at 10 U.S.C. § 1408(c)(1), lets a state court "treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." Disposable retired pay is, in the words of DFAS, gross retired pay less authorized deductions. The federal law permits division but does not hand anyone a share. A former spouse's share comes only from a state court order dividing the retired pay under the governing law. In San Diego County, that court is the Superior Court of California, County of San Diego.

In California, the governing law is community property. Retired pay earned during the marriage while the couple was domiciled in California is generally community property under Family Code section 760, though a California court may treat it as property under 10 U.S.C. § 1408 only if the court also has jurisdiction over the member under section 1408(c)(4): by the member's residence other than because of military assignment, domicile, or consent to the court's jurisdiction. A premarital agreement can change that default. Section 1612(a)(1) lets the parties contract about "the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located." A prenup can therefore state that the member's future retired pay will be the member's separate property. That limits or waives the other spouse's community claim, but only if the agreement passes every enforceability test above.

Federal law adds limits of its own. Section 1408(c)(2) says the statute does not create any interest a spouse or former spouse can sell, assign or transfer, including by inheritance. Section 1408(c)(3) says no court may order a member to apply for retirement or retire at a particular time to make a payment happen. The broader steps of dividing military retired pay after divorce are their own subject.

The "10/10 rule" is often misunderstood. It is a federal requirement tied to how long the marriage overlapped with the member's creditable service. It decides only whether DFAS can pay a former spouse's court-ordered share directly. It does not decide whether retired pay can be divided at all. DFAS states that a court order should contain enough information to determine whether the SCRA requirements and the USFSPA's jurisdictional and 10/10 requirements, "if applicable," have been met. A former spouse applies for direct payment on DD Form 2293.

Several other payments are separate from retired pay. VA disability compensation is paid by the Department of Veterans Affairs and is a distinct payment. DFAS lists, among the deductions from disposable retired pay, amounts of retired pay waived to receive compensation under Title 38 (Department of Veterans Affairs). Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC) are also separate federal payments, distinct from retired pay and from each other. Agreements that name each payment separately are more likely to be interpreted as intended, because courts and DFAS treat each payment under its own rules.

The Survivor Benefit Plan and Prenuptial Agreements

Under 10 U.S.C. § 1450(a), an SBP annuity is paid to the member's beneficiaries "effective as of the first day after the death" of the member, or on another day the member provides under the statute. The list of possible beneficiaries in section 1450(a) includes an eligible surviving spouse or eligible former spouse and dependent children, among others.

The SBP election is a federal decision made under federal rules, not a term of a private contract. Under 10 U.S.C. § 1448(a)(3)(A), a married member eligible for a standard annuity may not, without the spouse's concurrence, elect not to participate. The same consent is required to provide a spouse annuity at less than the maximum level, or to cover a dependent child but not the spouse. A prenup can record what the couple intends. For example, it can say whether the spouse will be the beneficiary and what the couple intends if the marriage ends. The election itself still happens later, on federal terms. A private agreement cannot override those terms.

After divorce, DFAS explains that a member may elect "former spouse" SBP coverage for a former spouse who was originally a "spouse" beneficiary, provided the divorce came after the member became eligible for retired pay. DFAS also explains that a former spouse may make a "deemed election." That election must be made within one year of the court order requiring SBP coverage. The interaction with other military spouse benefits after divorce is covered on its own page.

The size of an annuity starts from the "base amount." Under 10 U.S.C. § 1447(6), that term is defined differently depending on the kind of annuity. One definition covers a standard annuity for a person who dies after becoming entitled to retired pay. Others cover reserve-component annuities for a person who dies before age 60. Which definition applies depends on the kind of annuity involved.

TRICARE, Military Housing Allowance, and Benefits a Prenup Cannot Change

TRICARE eligibility for a former spouse is set by federal law, under rules often called the 20/20/20 rule and related rules. Those rules turn on the length of the marriage, the length of service and the overlap between them. Because eligibility is a federal benefit and not a property right, a prenup cannot grant it or waive it.

The same is true of the Basic Allowance for Housing (BAH), a federal housing allowance paid to service members, and the Basic Allowance for Subsistence (BAS), a federal food allowance. Federal rules set who receives them and when. A couple can agree how money already received will be treated between them, but cannot change who is entitled to the allowance.

What a prenup can address is set out in Family Code section 1612(a). The parties may contract about all of the following:

1. Each party's rights and obligations in any property of either or both, whenever and wherever acquired or located.
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, spend, assign, create a security interest in, mortgage, encumber, dispose of or otherwise manage and control property.
3. The disposition of property on separation, divorce, death or any other event.
4. Making a will, trust or other arrangement to carry out the agreement.
5. Ownership rights in, and disposition of, a life insurance death benefit.
6. The choice of law governing how the agreement is read.
7. Any other matter, including personal rights and obligations, that does not violate public policy or a statute imposing a criminal penalty.

The limits follow from the same section and from federal law. Under section 1612(b), the right of a child to support may not be adversely affected by a premarital agreement. Custody is decided by a court when it is at issue; for a sense of how that works for service members, see military child custody. And no agreement can override federal law that governs a federal benefit.

The Servicemembers Civil Relief Act and Prenuptial Agreement Timing

The Servicemembers Civil Relief Act (SCRA) is a federal law that gives service members procedural protections in civil court cases. It does not govern private contracts, and it does not stop a couple from negotiating or signing a prenup. It matters later, if the agreement is ever tested in a California divorce while one spouse is serving.

Stays are covered by 50 U.S.C. § 3932. A stay is a pause in a court case. The section applies to any civil action or proceeding, including a child custody proceeding, in which a party is in military service, or within 90 days after leaving it, and has received notice. At any stage before final judgment, the court "may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days." The application must include two things. One is a letter explaining how current military duty materially affects the member's ability to appear and giving a date the member will be available. The other is a letter from the commanding officer stating that current duty prevents appearance and that military leave is not authorized. Asking for a stay is not an appearance for jurisdiction purposes and does not waive defenses.

Default judgments are covered by 50 U.S.C. § 3931. A default judgment is one entered when a party does not respond. Before entering judgment for the plaintiff, the court must require an affidavit. The affidavit states whether the defendant is in military service, or states that the plaintiff cannot determine this. When the defendant is in service, the court must grant a stay of at least 90 days in certain circumstances. One is where a defense may exist that cannot be presented without the defendant. Another is where counsel, after due diligence, cannot reach the defendant or determine whether a meritorious defense exists. A default judgment entered during service, or within 60 days after it ends, can be reopened in some circumstances. The member must have been materially affected by service in making a defense and must have a meritorious or legal defense. The application is due no later than 90 days after service ends.

For a prenup, this means a challenge to enforceability, raised in a divorce while one spouse is deployed, may move on a different timeline. A broader military divorce checklist places these protections alongside the other early steps in a case.

Common Provisions in Military Prenuptial Agreements — and What Courts Have Refused to Enforce

Military prenups tend to cover the same ground. Common terms include characterizing future retired pay as the member's separate property and confirming that property owned before marriage stays separate. Many also set spousal support terms, decide what happens to a specific asset such as a home bought before the wedding, and state the couple's SBP intentions. Section 1612(a)(3) permits terms about the disposition of property on separation, divorce or death, which covers much of this.

For couples weighing a waiver of retired pay rights, the stakes can feel uneven, because one partner's career may already be well underway. That is exactly why California's enforceability rules are strict. Courts will not enforce terms in several categories. An agreement that was unconscionable when signed, combined with the disclosure failures in section 1615(a)(2), is unenforceable. So is one signed involuntarily under section 1615(a)(1) and (c). And no term may adversely affect a child's right to support under section 1612(b).

Spousal support has its own rule. Under Family Code section 1612(c), any provision about spousal support, including a waiver, is not enforceable in two situations. One is where the party against whom it is enforced had no independent counsel when the agreement was signed. The other is where the provision is unconscionable at the time of enforcement. Having counsel does not by itself make an otherwise unenforceable spousal support term enforceable.

Federal law adds a second layer for retired pay. Whatever a prenup says, DFAS pays a former spouse directly only under a qualifying court order, and a private agreement does not bind DFAS. A retired pay waiver is therefore tested twice: once under California's enforceability rules, and again against what federal law lets DFAS honor. When DFAS returns an order, the steps for enforcing military retirement division become relevant.

Timing also matters. Under Family Code section 1617, any statute of limitations for a claim under a premarital agreement is tolled, or paused, during the marriage. Equitable defenses such as laches (unreasonable delay) and estoppel remain available to either party.

If You'd Like to Talk Through a Military Prenup

A military prenup involves two kinds of law at once. There is California's checklist for enforceability, and there are federal rules for retired pay, SBP and TRICARE that no contract can change. A consultation can work through the facts that shape those rules for a particular couple: years of service already completed, where each person is domiciled, the wedding date against any deployment or PCS move, and which benefits the agreement would touch. Military Family Law Advocates practises California family law only. Questions arising under another state's law are addressed by a lawyer licensed in that state. Answers to related questions appear in the military divorce FAQ.

To talk with the firm about California military prenuptial agreements, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.