Property Division in a California Military Divorce

In a California military divorce, state law decides what is shared and splits it: property acquired during the marriage while domiciled in California is community property, divided equally. Federal law adds a second layer. It lets the court treat military retired pay as property, controls how the federal government pays a former spouse, protects VA disability compensation, and governs survivor benefits and a servicemember's procedural protections.

Most people facing a military divorce in San Diego County arrive with two sets of rules pulling at them at once. A spouse may have heard that a former spouse "gets half the pension," or that nothing is owed unless the marriage lasted ten years, and a service member may be wondering what happens to a case while on orders far from home. This article walks through how California's community property system and federal military law fit together, one benefit and one rule at a time, so the pieces of a real situation start to make sense.

What California Community Property Law Means for a Military Marriage

Family Code section 760 sets the starting rule: except as otherwise provided by statute, all property acquired by a married person during the marriage while domiciled in California is community property. Domicile is a person's legal home, the place they intend to remain, which is not always the place their orders send them. Separate property, under Family Code section 770, includes what a spouse owned before marriage and what a spouse received during marriage by gift or inheritance, along with the rents, issues and profits of that property.

Family Code section 2550 then directs the court, absent a written agreement or an oral stipulation in open court (or another provision of that division), to divide the community estate equally. For a military family, that analysis reaches pay, allowances and retired pay that fall within the section 760 rule. Because section 760 turns on domicile, a permanent change of station, or PCS (a reassignment to a new duty station), in or out of California can make the question of where the couple was domiciled during each stretch of service an important one. Property either spouse acquired while domiciled elsewhere, that would have been community property had the acquiring spouse been domiciled in California, is quasi-community property under Family Code section 125, a separate category the Family Code also accounts for; it is not simply left out of the case because the couple was stationed outside the state at the time.

Federal law sits on top of this state framework. The Uniformed Services Former Spouses' Protection Act, or USFSPA, is the federal statute at 10 U.S.C. § 1408 that allows state courts to treat military retired pay as divisible property and sets the conditions for the federal government to honor those orders. It does not, by itself, give a former spouse any share. Retired pay is the monthly payment a service member receives after retiring from the uniformed services. DFAS, the Defense Finance and Accounting Service, is the federal agency that pays it.

Federal law also treats different military payments differently. Military retired pay, VA disability compensation, Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC) are four separate payments. Lumping them together as "the military pension" is one of the most common sources of confusion in these cases.

How the USFSPA Lets a California Court Divide Military Retired Pay

Under 10 U.S.C. § 1408(c)(1), subject to the section's limitations, a court may treat disposable retired pay payable 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." That sentence is the heart of the USFSPA. It hands the question back to state law. In California, the answer comes from sections 760 and 2550.

Disposable retired pay is, in plain words, the member's gross retired pay minus certain deductions the federal statute authorizes. According to the DFAS legal overview of the USFSPA, an award of a percentage of a member's retired pay is automatically construed under the USFSPA as a percentage of disposable retired pay. The same page explains that if the parties divorce while the member is still on active duty, the award may be expressed by an acceptable formula or hypothetical retired pay award, and that a Qualified Domestic Relations Order is not required to divide retired pay as long as the award is set forth in the court order.

So a former spouse's share comes from a California court order, not from federal law. For divorces in San Diego County, that order comes from the Superior Court of California, County of San Diego, applying community property law to the community portion of the retired pay. Family Code section 2610 supports this, directing the court to make whatever orders are necessary or appropriate so each party receives a full community share in any retirement plan, including survivor and death benefits. The steps involved are covered in more detail in the guide to military retirement division.

The USFSPA also carries limits. Section 1408(c)(2) says the statute creates no right, title or interest that a spouse or former spouse can sell, assign, transfer or pass 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. Separately, the order must meet federal requirements before DFAS will honor it. Whether retired pay can be divided at all is a California question; whether and how DFAS pays a former spouse directly is the federal one. DFAS's own maximum-payment page adds a ceiling on the federal side: no more than 50 percent of a member's disposable retired pay can be paid to a former spouse under the USFSPA, and if DFAS is also paying child support or alimony under a separate garnishment, the combined total cannot exceed 65 percent of the member's disposable earnings.

The 10/10 Rule: What It Decides and What It Does Not

The 10/10 rule is a federal payment condition, not a property rule. It looks at how long the marriage overlapped the member's creditable military service, and it decides only one thing: whether DFAS can send a former spouse's court-ordered share of retired pay directly to the former spouse.

That distinction matters because the rule is so often misread. A spouse who hears that the marriage was "too short for the 10/10 rule" may assume there is no share to claim. That is not what the rule does. When the overlap requirement is not met, DFAS cannot make direct payment, but the California order dividing the retired pay can still stand. The member is then responsible for paying the former spouse's share under that order.

When the overlap is met and DFAS has a qualifying court order, a former spouse starts the direct-payment process with DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay. The form asks DFAS to pay; the court order is what creates the share. Readers working through what an enforceable order needs may find the step-by-step guide to a military retirement order useful.

The Thrift Savings Plan in a Military Divorce

The Thrift Savings Plan, or TSP, is a separate retirement account from military retired pay, and it is divided differently. Payments from it are made to a former spouse only as a court decree of divorce, or a court order or court-approved property settlement agreement incident to that decree, directs (5 U.S.C. § 8467). More on how that process works is in the Thrift Savings Plan.

VA Disability Compensation, CRDP, and CRSC: What a California Court Can and Cannot Reach

VA disability compensation, according to the VA's eligibility page, provides tax-free monthly payments to a veteran with a service-connected condition, meaning an illness or injury caused by, or made worse by, active military service. Federal law protects these payments closely. Under 38 U.S.C. § 5301(a)(1), benefits under laws the VA administers are not assignable except as specifically authorized by law and are not liable to "attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." VA disability compensation is not divisible community property.

A related issue arises when a retiree waives part of retired pay in order to receive VA disability compensation. The waived amount is generally not reachable by a state court property division order, and DFAS lists retired pay waived to receive compensation under Title 38 among the amounts excluded when it figures disposable retired pay, as its maximum payment page explains. A spouse who expected one figure and sees a smaller one after a disability award is often looking at this waiver.

CRDP, Concurrent Retirement and Disability Pay, is a federal program that restores some or all of the retired pay a qualifying retiree would otherwise give up because of VA disability compensation. CRSC, Combat-Related Special Compensation, is a different federal payment tied to disabilities that are combat-related. Each has its own eligibility rules and its own treatment. Neither is the same thing as retired pay, and neither is the same as VA disability compensation. How each one is treated in a California divorce calls for careful legal analysis of the specific payment, which the page on CRDP and CRSC explores further.

For a family in San Diego County where one spouse carries a disability rating, this section is often where expectations and the law diverge most sharply, and it is worth understanding before any settlement numbers are discussed.

The Survivor Benefit Plan: Protecting a Former Spouse's Interest After the Member Dies

The Survivor Benefit Plan, or SBP, is a federal program under chapter 73 of title 10 of the United States Code that pays a monthly annuity to a designated beneficiary after a retired member dies. Without it, a former spouse's share of retired pay generally ends when the member's retired pay ends.

Under 10 U.S.C. § 1450(a), the annuity is paid "effective as of the first day after the death" of the member (or on another day the member provides for under the statute), to beneficiaries in a set order. That order includes, among others, the eligible surviving spouse or eligible former spouse, then surviving dependent children in equal shares if that spouse or former spouse is dead or otherwise ineligible.

The size of the annuity is figured from a "base amount," and 10 U.S.C. § 1447(6) defines that term differently for different kinds of annuity. For a person who dies after becoming entitled to retired pay, for example, the base amount for a standard annuity is tied to the monthly retired pay the person was entitled to, determined as that subsection describes. Other kinds of annuity are measured differently, so the base amount that applies depends on the kind of annuity involved.

In a divorce, Family Code section 2610(a)(2) allows a California court to order a party to elect a survivor benefit annuity for the other party when a retirement plan provides for that election, though no court may order a plan to provide increased benefits determined on the basis of actuarial value. Former-spouse SBP coverage has to be addressed in the judgment or a separate court order. When it is left out and the member later dies, the former spouse may lose the benefit entirely. More on what a former spouse may keep after a divorce appears in the overview of military spouse benefits after divorce.

The Servicemembers Civil Relief Act and How It Affects California Divorce Proceedings

The Servicemembers Civil Relief Act, or SCRA, is a federal law that gives service members procedural protections in civil cases, and divorce is one of them. Two of its protections come up most often in family court.

The first is a stay, meaning a pause in the case. Under 50 U.S.C. § 3932, the stay applies to any civil action or proceeding, "including any child custody proceeding," in which a party is in military service or within 90 days after release from it and has received notice of the case. At any stage before final judgment, the court may stay the case on its own motion and, on the servicemember's application, must stay it for not less than 90 days if the application includes two things: a letter or other communication explaining how current military duty materially affects the servicemember's ability to appear and giving a date when the servicemember will be available, and a letter or other communication from the commanding officer stating that current duty prevents appearance and that military leave is not authorized. Applying for a stay is not an appearance for jurisdictional purposes and does not waive any defense.

The second protects against default judgments, which are judgments entered when one side does not respond. Under 50 U.S.C. § 3931, before entering judgment for the plaintiff, the court must require an affidavit stating whether the defendant is in military service, or stating that the plaintiff cannot tell. If it appears the defendant is in military service, the court may not enter judgment until it appoints an attorney to represent the defendant. If the court cannot determine military status from the affidavits, it may require a bond.

These protections give a servicemember a fair chance to take part. They are a pause and a set of safeguards, not a way to keep a divorce from moving forward indefinitely. A spouse in San Diego County waiting on a case while the other spouse is deployed often finds this distinction reassuring in both directions.

How California Courts Value and Divide the Military Retirement Earned During the Marriage

The time rule, also called the coverture fraction, is the formula California courts commonly use to find the community share of military retired pay. The fraction commonly places the years of creditable service that fell during the marriage, while the couple was domiciled in California, over the member's total creditable service at retirement; service performed while domiciled elsewhere is its own category, quasi-community property under Family Code section 125, rather than simply excluded. That fraction, applied to the retired pay, marks the community portion, which section 2550 then divides equally. The page on how retirement is divided walks through what drives that share.

Timing of value follows Family Code section 2552. Except as provided in subdivision (b), the court values assets and liabilities as near as practicable to the time of trial. On 30 days' notice by the moving party, the court may for good cause value all or part of the estate at a date after separation and before trial, to accomplish an equal division in an equitable manner.

There are two broad ways to divide. One is a share of future payments, paid as the retired pay is paid. The other, by agreement, is a fixed-dollar offset, where the member keeps the retired pay and the other spouse receives other community property of equal present value. The choice has consequences: according to DFAS's maximum payment page, percentage awards automatically receive a proportionate share of the member's cost-of-living adjustments, while fixed dollar amount awards do not, even if the court order awarded them.

Disclosure runs alongside all of this, and the court's financial disclosure guidance explains that it is a required step in every divorce. Under Family Code section 2104(f), the petitioner serves the preliminary declaration of disclosure with the petition or within 60 days of filing it, and the respondent serves it with the response or within 60 days of filing it, unless the parties extend that time by written agreement or the court extends it by order. Under Family Code section 2105(a), except by court order for good cause, each party serves a final declaration of disclosure and a current income and expense declaration before or at the time the parties agree on property or support issues other than temporary support, or, if the case goes to trial, no later than 45 days before the first assigned trial date. The parties may mutually waive the final declaration, but under section 2105(d) the waiver must be executed under penalty of perjury, in open court or by separate stipulation.

If You'd Like to Talk Through How These Rules Fit Your Case

Military property division rarely turns on one rule. It turns on how domicile, years of service, a disability rating, survivor coverage and the timing of the case interact for one family. A consultation is a place to raise questions about the dates of marriage and service, where the couple was domiciled along the way, and whether VA compensation, CRDP, CRSC or SBP coverage is involved. Military Family Law Advocates practises California family law only.

To talk with the firm about how California and federal law apply to property division, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.

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