Can an Ex-Spouse Claim Military Retirement Years After Divorce in California?

Yes, in many cases. If military retired pay was never divided in a California divorce, a former spouse can generally ask the court to divide it later as an omitted asset. The court keeps jurisdiction over community property that the judgment never addressed. The share comes from a California court order, not automatically from federal law, and delay can make the process harder.

Most people facing this question are living with a divorce they thought was finished. Some are former military spouses who recently learned that a pension they helped earn was never mentioned in the judgment. Others are retired service members who have received a letter or a motion years after the decree and want to know whether the old case can really be reopened. Both sides are trying to answer the same question: does an old divorce still leave this money open?

This article walks through the federal rules and the California rules that answer that question. It covers community property, the omitted-asset statute, the 10/10 rule, what changes once the member has retired, and what a division order has to say before the federal payment agency will act on it. Many of these cases arise in San Diego County, where military families often divorce, but the same state rules apply across California.

The Short Answer: What the Law Actually Allows

The Uniformed Services Former Spouses' Protection Act (USFSPA) is the federal law that lets state courts treat military retired pay as property in a divorce. Under 10 U.S.C. § 1408(c)(1), "a court may 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."

Retired pay is the monthly payment a service member receives after completing the required years of service and retiring from the military. The Defense Finance and Accounting Service (DFAS) is the federal agency that processes and pays military retired pay. DFAS is also the agency that can pay a former spouse's share directly, if it receives a qualifying court order.

The USFSPA does not award anything to a former spouse by itself. It gives permission to state courts. The former spouse's share comes only from a state court order that divides the retired pay under that state's law. In California, the governing law is community property. The Uniformed Services Former Spouses' Protection Act also limits which courts can divide the pay. Under 10 U.S.C. § 1408(c)(4), the court needs jurisdiction over the member because of the member's residence in the court's territory (other than because of a military assignment), the member's domicile there, or the member's consent to the court's jurisdiction.

When a California judgment never dealt with the retired pay, the pension may be treated as an omitted asset. That is the legal path that lets a former spouse, or a service member who wants the question settled, return to court years later.

How California Treats Military Retired Pay as Community Property

California Family Code section 760 states the basic rule: "all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property," except as otherwise provided by statute. Domicile means the place a person treats as their permanent home, which is not always where military orders send them.

Applied to military retirement, only the part of retired pay earned through service during the marriage, while the couple was domiciled in California, is community property. Service before the marriage or after separation generally belongs to the service member as separate property.

California courts commonly calculate the community share with a time-rule fraction, often called the coverture fraction. The top number is the creditable service during the marriage. The bottom number is total creditable service at retirement. The resulting fraction is the community portion, which is then usually split between the spouses. How that fraction is applied to a member whose rank or service changed after the divorce is a separate topic, covered in the discussion of the frozen benefit rule.

Valuation follows its own rule. Under Family Code section 2552(a), the court values community assets and liabilities "as near as practicable to the time of trial." Under section 2552(b), on 30 days' notice, the court may for good cause value all or part of the estate at a date after separation and before trial.

A word of care about the different payments a veteran may receive. Military retired pay is the retirement benefit described above. VA disability compensation is a payment from the Department of Veterans Affairs for service-connected disability. Concurrent Retirement and Disability Pay (CRDP) is a payment that restores retired pay for certain retirees who also receive VA disability compensation. Combat-Related Special Compensation (CRSC) is a separate payment for certain combat-related disabilities. These are four different payments, and they are not one "military pension." Each follows its own rules in a divorce, and a court order that divides one does not automatically reach another. A broader overview appears in the guide to military retirement division.

When a Former Spouse Can Reopen the Issue Years Later: Omitted Assets

Family Code section 2556 is the statute that keeps these older cases open. It provides that "the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding." Either party "may file a postjudgment motion or order to show cause" to have the omitted asset decided. The court "shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division."

Section 2556 itself sets no deadline for bringing the motion; a motion to set aside a judgment is different, and Family Code section 2122 sets time limits for that. The passage of time does not, by itself, erase the community interest in the marital part of the retired pay. Delay still matters in practice, though. Records get harder to find, payments may already have gone out for years, and the parties may argue about whether the earlier judgment really left the asset undecided.

The wording of the original judgment matters a great deal here. A decree that said nothing about military retirement is the classic omitted asset. A decree that expressly awarded all retirement to the service member is different, because that asset was "previously adjudicated." Section 2556 reaches only what the judgment did not decide, so in that situation a former spouse's path is much narrower. For a former spouse who has been told the pension was "handled," and a member who believed it was, this distinction is often the center of the case.

Once the court divides the retired pay, a second document usually follows. A court order acceptable for processing, sometimes called a COAP, is a court order written so that DFAS can act on it and pay the former spouse directly. It plays a role similar to the order used to divide a civilian retirement plan. Family Code section 2610(a)(4) separately gives a California court power to order a retirement plan to make payments directly to the nonmember party of that party's community interest.

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

A common belief is that a former spouse gets nothing unless the marriage lasted long enough under the 10/10 rule. That belief is mistaken. The 10/10 rule, found in 10 U.S.C. § 1408, decides only whether DFAS can pay a former spouse's share directly. It does not decide whether retired pay can be divided.

Creditable military service means the years of service that count toward retirement eligibility. The rule looks at the overlap between the marriage and that creditable service. It is not measured by the length of the marriage alone, or by the length of service alone. Its name comes from the minimum amount of overlapping marriage and service the statute requires before direct payment is available.

Direct pay means DFAS sends the former spouse's share straight to the former spouse, rather than the service member receiving the full payment and forwarding part of it. When the overlap requirement is not met, a California court can still divide the retired pay as community property. The difference is in collection: the former spouse is paid by the service member under the court order, not by DFAS. The separate page on the 10/10 rule explains the overlap calculation in more detail.

What Happens If the Service Member Has Already Retired

Retirement after the divorce does not close the door. The community interest attaches to the marital portion of service, whether the member is still on active duty, approaching retirement or already retired. If the member retired after the divorce and no order dividing the pay was ever entered, the former spouse may still bring the omitted asset back to court under section 2556.

Federal law also limits what a court can require. Under 10 U.S.C. § 1408(c)(3), the USFSPA "does not authorize any court to order a member to apply for retirement or retire at a particular time." Family Code section 2610(b)(2) similarly bars an order requiring a retirement plan to pay benefits before the member retires, except as provided in that section or unless the plan so provides.

When a member is already receiving retired pay and DFAS is not paying the former spouse, two things are usually needed: a California court order dividing the retired pay, and a court order acceptable for processing served on DFAS. Under 10 U.S.C. § 1408(d)(1), for a member already entitled to retired pay when the order is effectively served, payments "shall begin not later than 90 days after the date of effective service." For a member not yet entitled, payments begin not later than 90 days after the member first becomes entitled to retired pay.

The Survivor Benefit Plan (SBP) is a separate question. SBP is a federal annuity program that can pay a surviving spouse or former spouse a monthly income after the member's death. Under 10 U.S.C. § 1450(a), the annuity is paid effective as of the first day after the member's death. Former-spouse coverage does not happen by itself. Family Code section 2610(a)(2) allows a California court to order a party to elect a survivor benefit annuity for the other party, and federal time limits apply to making that election. The amount the annuity is based on, called the "base amount," is defined differently depending on the kind of annuity (10 U.S.C. § 1447(6)). More detail is in the guide to the Survivor Benefit Plan.

Remarriage affects these benefits differently. Under 10 U.S.C. § 1450(b)(2), an SBP annuity for a former spouse who remarries before age 55 is paid until the remarriage, and under § 1450(b)(3) payment resumes if that marriage is terminated by death, annulment or divorce. TRICARE, the federal health program for eligible military family members, follows its own federal eligibility rules. A share of retired pay divided as property is set by the court order, not by the rules that govern those other benefits.

What a California Court Order Dividing Military Retirement Must Include

Section 1408 of title 10 sets the standard DFAS applies, and a general divorce decree often does not meet it. For a property division, 10 U.S.C. § 1408(d)(1) requires a court order "specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse." The order arises from a final decree of divorce, dissolution, annulment or legal separation, including a court-ordered, ratified or approved property settlement incident to such a decree, as described in § 1408(c)(1).

In practice, that means the order expressly divides military retired pay and states the former spouse's share, as a dollar amount, a percentage or a formula. A line awarding "all community property" equally, without naming the retired pay, is typically not enough for DFAS to act. The order also identifies the service member with the identifying information DFAS needs to match it to the right account. DFAS reviews the order for compliance with section 1408 before paying, and an order that falls short can be rejected.

Getting the order signed by the Superior Court of California, County of San Diego, or any other California court, is one step. Serving it on DFAS is another. DFAS's payment duty under § 1408(d)(1) begins only "after effective service" of the order. Section 1408 also places a ceiling on how much of a member's disposable retired pay DFAS can pay out under these orders, so a court's division and the amount DFAS can send directly are not always the same. The San Diego County military divorce guide covers how these issues fit into a local case.

If You'd Like to Talk Through an Older Divorce Decree

Questions about retired pay years after a divorce usually turn on a few specific facts: the exact wording of the original judgment, the dates of the marriage and of separation, where the couple was domiciled, the member's creditable service, and whether retirement has already begun. A consultation is a place to raise those questions. Military Family Law Advocates practises California family law only, so questions about a judgment entered in another state may need counsel licensed there.

To talk with the firm about an older divorce decree, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.

About this article. Military Family Law Advocates is not affiliated with, endorsed by, or connected to the U.S. Department of Defense, any military branch or the federal government.