How Long Does a Former Spouse Receive Military Retirement Pay in California?

A former spouse's court-ordered share of military retired pay generally lasts as long as the order says. Orders commonly tie it to the retiree's lifetime. Payments run while the member receives retired pay, and they stop at the member's death; a separate Survivor Benefit Plan annuity, where one is in place, can continue income after that.

Most people facing this question are holding a divorce judgment from years ago, or a draft of one, and trying to work out what it means for the decades ahead. A former spouse may be planning a retirement budget around a monthly payment and wondering whether it could simply stop. A retired service member in San Diego County may be wondering whether the payment ever ends, whether remarriage changes anything, or what a VA disability rating will do to it. The answer depends on a small set of federal and California rules and on the exact words of the court order. This page walks through each of them.

What the Uniformed Services Former Spouses' Protection Act Actually Says

The Uniformed Services Former Spouses' Protection Act (USFSPA), codified at 10 U.S.C. § 1408, is the federal law that lets a state court's order reach military retired pay. Retired pay is the monthly payment a service member receives after qualifying for military retirement. The USFSPA also sets the conditions under which the Defense Finance and Accounting Service (DFAS), the federal agency that pays military retirees, will send part of that payment straight to a former spouse.

The USFSPA does not automatically give a former spouse any share of retired pay. No federal law does. A former spouse's share comes from a state court order dividing the retired pay under the governing state law. Without that order, there is nothing for DFAS to pay.

In California, the governing state law is community property. Family Code section 760 provides that, "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Retired pay earned through military service during a marriage while the couple was domiciled in California is therefore generally community property that a California court can divide.

Once a court divides it, the order has to meet the USFSPA's requirements before DFAS will honor it. Section 1408(d)(1) directs payment after "effective service on the Secretary concerned of a court order" that, for a property division, "specifically provid[es] for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse." DFAS's own legal overview of the USFSPA adds that a Qualified Domestic Relations Order is not required to divide retired pay, as long as the former spouse's award is set out in the pertinent court order. The full mechanics of drafting a division appear in the site's guide to dividing military retired pay.

How Long the Payments Last: The Duration Rule Under Federal Law

Duration starts with a simple point: the former spouse's share is paid out of the member's retired pay. Section 1408(d)(1) directs payments "from the disposable retired pay of the member." If the member is not receiving retired pay, there is no payment for the share to come from. Payments to the former spouse therefore track the member's own retired pay.

That is why so many orders run, in practice, for the member's lifetime. The common events that end the payment are:

• The member's death. Retired pay ends when the retiree dies, so the share paid from it ends too. The Survivor Benefit Plan (SBP), a federal program that can pay a monthly annuity to a survivor, is the mechanism that can continue income after that point. It is covered in its own section below.
• The former spouse's death. A former spouse cannot keep receiving payments after death. What, if anything, happens to amounts owed at that time is a matter for the order and governing law.
• Any other termination event written into the order. The order's own language controls. A carefully written order states when payments begin, how they are calculated and what ends them.

Remarriage is the question that causes the most confusion. The USFSPA text does not make remarriage end a property share of retired pay. California's support statute, Family Code section 4337, says that "Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party." That rule speaks to spousal support. A share of retired pay awarded as divided community property is a different kind of award, and whether anything in a particular judgment ends on remarriage turns on what the judgment says and which kind of award it is.

Several other military payments sit next to retired pay but are not the same thing. VA disability compensation is a payment from the Department of Veterans Affairs for service-connected disability. Concurrent Retirement and Disability Pay (CRDP) is a separate payment that can restore some retired pay to certain retirees who also receive VA disability compensation. Combat-Related Special Compensation (CRSC) is a separate payment tied to certain combat-related disabilities. Each is a distinct payment with its own treatment, and none of them is simply part of a single "military pension." When a retiree gives up retired pay to receive VA disability compensation, the waived amount is one of the deductions DFAS lists in calculating disposable retired pay, which is explained further below.

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

The 10/10 rule is a threshold in the USFSPA about how long the marriage overlapped with the member's creditable military service. Its name refers to a required overlap between years of marriage and years of service that count toward retirement. It is often described as a rule about who "gets" military retirement. That description is wrong.

The 10/10 rule decides only whether DFAS can pay the former spouse's share directly. It does not decide whether retired pay can be divided. A California court can divide retired pay earned during a shorter marriage. When the threshold is not met, the division is still valid, and the member pays the former spouse's share directly rather than DFAS sending it.

When the threshold is met, the former spouse applies to DFAS using DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay, along with the court order. Section 1408(d)(1) sets the timing: where the member is 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." Where the member is not yet entitled to retired pay, payments "shall begin not later than 90 days after the date on which the member first becomes entitled to receive retired pay." DFAS's page on receiving payments restates those same timing rules for a complete application. The site's page on DFAS former spouse payments covers the application itself.

DFAS's receiving-payments page also notes that a retiree who has been paying a former spouse by voluntary allotment, and whose former spouse is then awarded direct payments, must notify DFAS Retired and Annuitant Pay to stop the allotment, because DFAS has no authority to stop a member's voluntary allotments.

What Happens to Payments When the Member or Former Spouse Dies

A member's death is the moment many former spouses worry about most, and the rules here are federal and specific. Because retired pay ends at the member's death, DFAS direct payments of the retired-pay share end with it. The share of retired pay does not, by itself, become a survivor benefit.

The Survivor Benefit Plan is the federal program that can continue a monthly income. Under 10 U.S.C. § 1450(a), a monthly annuity is paid "Effective as of the first day after the death" of the covered person (or on another day the person provides for under subsection (j)) to the beneficiaries under the Plan, beginning with "The eligible surviving spouse or the eligible former spouse." The annuity therefore begins effective the first day after the member's death, not on the date of death.

A former spouse is covered only if designated as the SBP beneficiary, either by the member's election or because a court order requires former spouse coverage. DFAS's page on the former spouse SBP deemed election explains that if the member has been court ordered to elect former spouse SBP, the former spouse can submit a "deemed election request" to DFAS, and that the request must be submitted within one year of the order requiring former spouse SBP coverage. If a proper request is made within that year, DFAS enters the coverage on the member's account even if the member has not made the election. SBP generally covers one spouse or former spouse, a point developed in the site's article on a second spouse and retired pay.

The size of the annuity is generally tied to a "base amount," and 10 U.S.C. § 1447(6) defines that term differently depending on the kind of annuity. For a standard annuity, where the person dies after becoming entitled to retired pay, it refers to the monthly retired pay to which the person was entitled, as that subsection describes, unless the person designated a lesser, reduced base amount, which that subsection also permits. For a reserve-component annuity, where the person died before age 60, it refers to the retired pay the person would have been eligible for under the conditions that subsection sets out, again unless a reduced base amount was designated. Which definition applies depends on the annuity.

The SBP annuity also has its own ending rules. Section 1450(b)(2) provides that an annuity for a surviving spouse or former spouse is paid while that person is living or, if the person remarries before reaching age 55, until the remarriage. Under section 1450(b)(3), if that later marriage ends by death, annulment or divorce, payment resumes effective as of the first day of the month in which the marriage ends. And if the former spouse dies before the member, there is no former spouse left to receive an annuity, so that coverage has no one to pay.

How California Courts Divide Military Retired Pay

Division begins with characterization. Family Code section 760, quoted above, makes retired pay earned during the marriage while domiciled in California community property, and the portion earned before marriage or after separation is generally not community property.

To separate those portions, California courts commonly use a time-rule approach, sometimes called a coverture fraction. The fraction compares the creditable service that overlapped the marriage with the member's total creditable service at retirement. That fraction identifies the community portion, which is then divided between the spouses. Whether a former spouse's share comes close to half of the retired pay depends on how much of the career fell within the marriage.

The order must then be written so DFAS can carry it out. Section 1408 requires an order that specifically provides for payment of an amount of disposable retired pay. Disposable retired pay is, in plain terms, the portion of retired pay left after certain deductions authorized by federal law. DFAS's page on the maximum payment describes it as "gross retired pay less authorized deductions" and notes that the deductions depend on the effective date of the divorce. DFAS's legal overview adds that "An award of a percentage of a member's retired pay is automatically construed under the USFSPA as a percentage of disposable retired pay," and 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. For divorces entered after December 23, 2016, where the order becomes final before retirement, DFAS describes a limit on the disposable pay tied to the member's pay grade and years of service at the time of the court order, increased by retiree cost-of-living amounts.

Family law cases in San Diego County are heard by the Superior Court of California, County of San Diego. Once that court enters a qualifying order, the former spouse serves it on DFAS with DD Form 2293 to begin direct payment where the 10/10 rule is met. VA disability compensation, CRDP and CRSC are not the same as disposable retired pay, and each is treated under its own rules.

Deployment can also shape the timing of a division. Under 50 U.S.C. § 3932, a servicemember who has notice of a proceeding can apply for a stay of at least 90 days if the application includes a statement of how current military duty materially affects the ability to appear, with a date of availability, and a commanding officer's communication that duty prevents appearance and leave is not authorized; the court may also grant such a stay on its own motion. Under 50 U.S.C. § 3931, in an action where the defendant does not make an appearance, the court, before entering judgment for the plaintiff, must require an affidavit about whether the defendant is in military service, and if the defendant appears to be in service, it may not enter judgment until it appoints an attorney to represent the defendant.

When retired pay was left out of a judgment entirely, a separate set of questions arises, which the site addresses in its article on claiming retirement years later.

When Retired Pay Can Be Reduced After the Order Is Entered

Life keeps moving after a judgment is signed, and a former spouse who has relied on a steady payment may find that it changes without any new court hearing. The reasons usually trace back to how disposable retired pay is calculated.

DFAS's maximum-payment page lists the authorized deductions for divorces effective on or after February 3, 1991. They are: amounts owed to the United States for previous overpayments and required recoupments; forfeitures of retired pay ordered by court-martial; retired pay waived to receive compensation under Title 5 (federal civilian employment) or Title 38 (Department of Veterans Affairs); retired pay under chapter 61 computed using the disability percentage at retirement; and SBP premiums for an annuity to a spouse or former spouse receiving a court-ordered share. DFAS states that if a former spouse was awarded a percentage of disposable retired pay, "changes in the member's authorized deductions will result in a change in the amount the former spouse receives."

That is how a VA disability waiver can shrink a former spouse's payment. When a retiree waives retired pay to receive VA disability compensation, the waived amount comes out of disposable retired pay, so the pool the percentage applies to gets smaller. The former spouse does not receive a share of the VA disability compensation itself through DFAS, because it is not disposable retired pay. CRDP and CRSC are separate payments again, and their effect in a particular case depends on how they interact with the retiree's retired pay and the order's terms.

A different problem arises when the member never reaches retirement. If a member separates before qualifying for retired pay, there is no retired pay for the order to attach to, and section 1408(d)(1) has nothing to pay from.

These situations show why the duration and amount of a former spouse's share depend partly on events after the divorce is final. The broader picture of what a former spouse may keep, including SBP and health coverage, appears in the site's overview of benefits after divorce.

If You'd Like to Talk Through How Long Your Payments Will Last

How long a share of retired pay lasts often comes down to a few sentences in a judgment: the termination events it names, whether it awards a percentage of disposable retired pay, and whether it addresses the Survivor Benefit Plan. A consultation is a place to raise those questions, including the dates of the marriage and service, any VA disability waiver, and the SBP election on file. Military Family Law Advocates practices California family law only, so questions about VA claims or other federal benefit programs belong elsewhere.

To talk with the firm about how long a share of military retirement pay lasts, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.

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