High-Asset Military Divorce in California

In a California military divorce with significant assets, a state court divides the community estate under California law, including the marital share of military retired pay if it has jurisdiction over the member under 10 U.S.C. § 1408(c)(4). Federal law adds its own rules: the USFSPA for retired pay, the Survivor Benefit Plan for survivor coverage and the Servicemembers Civil Relief Act for timing.

Most people searching for help with a high-asset military divorce in San Diego County are carrying two sets of worries at once. One is the household itself: a home in San Diego, maybe a rental in Orange County, investment accounts, a business started during a PCS (permanent change of station) cycle, and children whose schedules already bend around orders. The other is the retirement and benefits picture that took a whole career to build, and the fear that one wrong line in a judgment could cost a former spouse survivor coverage or leave a service member paying on a share no one meant to give. This page lays out how California and federal law fit together on those questions, so the conversation that follows can start from solid ground.

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What Makes a High-Asset Military Divorce Different in California

California is a community property state. Under Family Code section 760, property acquired by a married person during the marriage while domiciled in California is community property, unless a statute provides otherwise. Family Code section 2550 then directs the court to divide the community estate equally, except on the parties' written agreement, their oral stipulation in open court, or as otherwise provided by the Family Law Division of the Code.

Military life adds a federal layer on top of that state framework. Three bodies of federal law do most of the work:

• The USFSPA (the Uniformed Services Former Spouses' Protection Act), which allows a state court to treat military retired pay as divisible property and sets the rules for how the government pays a former spouse.
• The SCRA (the Servicemembers Civil Relief Act), which shapes the timing of a case when a party is serving.
• The Survivor Benefit Plan statutes, which control the annuity a former spouse may receive after the member's death.

The USFSPA does not hand a former spouse any share of retired pay on its own. A former spouse's share exists only because a state court order divides the retired pay under the governing law.

High-asset cases add further layers: several parcels of real property, deferred compensation, the Thrift Savings Plan (TSP, the federal retirement savings plan available to service members), business interests and federal benefits, each following its own division rules. Civilian asset characterization and valuation is a large subject of its own; on this page it matters only where it meets the military pieces.

For residents of San Diego County, family law cases are heard by the Superior Court of California, County of San Diego. Orange County and Los Angeles County cases go to their own county superior courts. This page explains the legal framework only.

Dividing Military Retired Pay Under California Law and the USFSPA

Under 10 U.S.C. § 1408(c)(1), a court may treat disposable retired pay payable for pay periods beginning after June 25, 1981, either as the member's sole property or as property of the member and spouse, "in accordance with the law of the jurisdiction of such court." It can do so only if it has jurisdiction over the member under 10 U.S.C. § 1408(c)(4): residence other than because of military assignment, domicile, or the member's consent. Retired pay here means the pay a member receives after retiring from the uniformed services. In California, that governing law is community property. The portion of retired pay earned during the marriage while the couple was domiciled in California is community property under section 760 and divided under section 2550; service during the marriage while domiciled elsewhere can be quasi-community property, which Family Code section 125 defines as property acquired while domiciled elsewhere that would have been community property had the acquiring spouse been domiciled in California.

Timing also shapes the amount. When a decree that divides property becomes final before the member retires, 10 U.S.C. § 1408(a)(4)(B) computes the retired pay that can be divided from the member's retired pay base and years of service (for a reserve retirement, creditable service points) on the date of the decree, increased by the cost-of-living adjustments the statute describes. The frozen benefit rule page explains that calculation.

Three limits in section 1408 matter in nearly every case:

• A court may not treat retired pay as property if a final decree issued before June 25, 1981 did not treat, or reserve jurisdiction to treat, any of it as marital property (10 U.S.C. § 1408(c)(1)).
• The section creates no right, title or interest a spouse or former spouse can sell, assign, transfer or otherwise dispose of, including by inheritance (10 U.S.C. § 1408(c)(2)).
• The section does not let any court order a member to apply for retirement or retire at a particular time to make a payment happen (10 U.S.C. § 1408(c)(3)).

The 10/10 rule is the most misunderstood idea in this area. Under 10 U.S.C. § 1408(d)(2), it requires a marriage of 10 years or more during which the member performed at least 10 years of service creditable toward retired pay. It decides only whether DFAS (the Defense Finance and Accounting Service, the agency that pays military retired pay) can send the former spouse's share directly. It does not decide whether retired pay can be divided. A California court can divide the community portion of retired pay after a shorter marriage. When the overlap is not met, the share still exists under the court order, but it has to be paid another way, generally by the member rather than by DFAS.

Military retired pay, VA disability compensation, Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC) are four different payments with different legal treatment. They are not one "military pension." Section 1408 speaks to disposable retired pay, a defined term, and how each of the other payments affects a division depends on the specific facts and the law that governs that payment. A judgment that lumps them together can create problems years later. The step-by-step mechanics are covered in the guide to dividing military retired pay.

The TSP follows a separate federal statute. Under 5 U.S.C. § 8467(a), payments under that chapter that would otherwise go to the participant are paid to another person if, and to the extent, a divorce decree or a court-approved property settlement incident to the decree expressly provides for it. Under § 8467(b), that applies only to payments made after the agency receives written notice of the decree and any documentation it requires.

The Survivor Benefit Plan and What Happens to It at Divorce

The Survivor Benefit Plan (SBP) provides a monthly annuity to an eligible beneficiary after the member's death. 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 under subsection (j). The statute lists beneficiaries including the eligible surviving spouse or eligible former spouse, dependent children in the circumstances it describes, certain special needs trusts for disabled dependent children, and a natural person designated under "insurable interest" coverage.

At divorce, a court order may require the member to elect, or to enter into an agreement to elect, SBP coverage for a former spouse (10 U.S.C. § 1450(f)(4)). If the member then fails or refuses to make a required election, it is deemed made when the Secretary concerned receives the former spouse's written request with a copy of the court order (or, for a filed agreement, a statement from the court clerk), but only if the request arrives within one year of the date of the court order or filing (10 U.S.C. § 1450(f)(3)). California law points the same way. Family Code section 2610 directs the court to make whatever orders are necessary or appropriate to ensure each party receives the party's full community property share in any retirement plan, "including all survivor and death benefits," and it includes orders disposing of benefits payable on or after the death of either party consistent with section 2550.

How much the annuity is built on depends on its "base amount," and 10 U.S.C. § 1447(6) defines that term differently for different kinds of annuity. For a standard annuity, where the person dies after becoming entitled to retired pay, the base amount is the monthly retired pay the person was entitled to on becoming eligible, or later became entitled to through advancement on the retired list, active duty or transfer from the temporary to the permanent disability retired list. For a reserve-component annuity, where the person dies before age 60, it is measured by the retired pay the person would have been eligible for at age 60, under rules tied to the designation the member made. The base amount in a particular case depends on which kind of annuity applies.

In a high-asset case, SBP coverage can be one of the most valuable assets on the table, and a former spouse who has relied on it for years may have no substitute for it. That is why it is addressed expressly in the judgment rather than left implied. The page on military spouse benefits after divorce covers how SBP sits alongside the other benefits.

TRICARE, Housing Allowances, and Other Federal Benefits After Divorce

TRICARE is the military health care program. Whether a former spouse can keep TRICARE coverage after the divorce turns on the length of the marriage, the member's creditable service and how much the two overlapped, under 10 U.S.C. § 1072(2)(F)-(H). An unremarried former spouse without medical coverage under an employer-sponsored health plan qualifies if, on the date of the final decree, the marriage had lasted at least 20 years during which the member performed at least 20 years of creditable service. If the member served at least 20 years and the marriage lasted at least 20 years but overlapped that service by at least 15 and less than 20 years, an unremarried former spouse without employer-sponsored coverage whose final decree is dated on or after April 1, 1985 is covered only for the one-year period beginning on the date of that decree. The thresholds are set by federal law, not by the California court, and a divorce judgment cannot create eligibility where federal law does not provide it.

That matters to the property and support picture. A spouse who loses federal health coverage at divorce faces costs that someone who keeps it does not, and those circumstances can bear on support. Family Code section 4320 directs the court, in ordering spousal support, to consider a list of circumstances, including the extent to which each party's earning capacity is sufficient to maintain the marital standard of living. The military spousal support page walks through those factors.

BAH (Basic Allowance for Housing) and BAS (Basic Allowance for Subsistence) are allowances paid to service members on top of base pay. They can be relevant to how income is viewed for support purposes. Amounts vary by location, rank and dependency status, and this page states none of them. Eligibility for TRICARE, commissary and exchange privileges is decided by the federal agencies that administer those programs.

Deployment, Custody, and Visitation Under California Law

Best-interest standard. Custody in California turns on the child's best interest. Family Code section 3011 lists factors the court considers, including the health, safety and welfare of the child; a history of abuse by a parent or other person seeking custody; and the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances. Under Family Code section 3040(a)(1), in making an order granting custody to either parent, the court considers, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with sections 3011 and 3020.

Visitation follows the same standard. Under Family Code section 3100(a), the court grants a parent reasonable visitation when it is shown that visitation would be in the child's best interest.

Deployment orders. Under Family Code section 3047(b)(1), if a parent with custody or visitation receives temporary duty, deployment or mobilization orders that require a move a substantial distance away or otherwise materially affect that parent's ability to exercise custody or visitation, any necessary modification is deemed a temporary custody order made without prejudice, subject to review and reconsideration on the parent's return. On the relocating parent's motion, the court may grant reasonable visitation during the absence to a stepparent, grandparent or other family member, but only if it makes the findings section 3047(b)(3)(B) lists. That visitation is neither automatic nor the deploying parent's own choice. The military parenting plans page covers how plans account for orders.

Moves. Under Family Code section 3024, if the court does not consider it inappropriate, a custody order may require a parent to notify the other parent before changing the child's residence for more than 30 days, unless there is prior written agreement to the removal. To the extent feasible, the notice is given at least 45 days before the move, to allow time to mediate a new custody agreement.

Mediation and recommendations. When custody or visitation is contested, the court must set the contested issues for mediation under Family Code section 3170. Domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council (Family Code section 3170(b)). In San Diego County, that mediation is child custody recommending counseling with the court's Family Court Services. Under Family Code section 3183(a), except as provided in section 3188, the mediator may, consistent with local court rules, submit a recommendation to the court on custody or visitation if the mediator has first provided the recommendations in writing to the parties and their attorneys, including counsel for any minor children, before the hearing. That mediator is called a child custody recommending counselor; Family Court Services calls the role the Family Court Counselor. Family Court Services states that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The counselor's recommendation can carry real weight; the judge decides.

Emergency orders. Under Family Code section 3064(a), the court refrains from granting or modifying custody on an ex parte basis unless there is a showing of immediate harm to the child or immediate risk the child will be removed from California. Section 3064(b) says immediate harm includes, among other things, a parent's recent or continuing acts of domestic violence and recent or continuing sexual abuse of the child, and the court must consider a parent's illegal access to firearms and ammunition.

Domestic violence. Under Family Code section 3044(a), on a finding that a parent perpetrated domestic violence within the previous five years against the other parent, the child, the child's siblings or certain related persons, there is a rebuttable presumption that awarding that parent sole or joint physical or legal custody is detrimental to the child's best interest. Under section 3044(b)(1), neither the preference for frequent and continuing contact with both parents nor the preference for contact with the noncustodial parent may be used to rebut that presumption, in whole or in part. More detail is on the military child custody page.

Servicemembers Civil Relief Act Protections and California Divorce Proceedings

The Servicemembers Civil Relief Act (50 U.S.C. § 3901) applies in civil proceedings, and both of its key protections expressly include child custody proceedings. For a service member on a ship or a long training cycle, or a spouse at home in San Diego trying to understand why the case seems to stall, these two sections explain most of what happens.

Stay of proceedings. Under 50 U.S.C. § 3932, a party who is in military service, or within 90 days after release from it, and who has received notice of the case can seek a stay. At any stage before final judgment, the court may stay the case on its own motion and shall, on the servicemember's application, stay it for not less than 90 days, if the application includes a communication explaining how current military duty materially affects the servicemember's ability to appear and giving a date of availability, and a 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 waives no defense, including lack of personal jurisdiction. Additional stays can be requested based on the continuing effect of military duty.

Default judgments. Under 50 U.S.C. § 3931, when the defendant does not appear, the court must require the plaintiff to file an affidavit stating whether the defendant is in military service, with supporting facts, or stating that the plaintiff cannot determine it. If the defendant appears to be in military service, the court may not enter judgment until it appoints an attorney to represent the defendant. If the defendant is in military service, the court must also stay the case for at least 90 days, on counsel's application or its own motion, if there may be a defense that cannot be presented without the defendant, or if counsel, after due diligence, cannot contact the defendant or otherwise determine whether a meritorious defense exists (50 U.S.C. § 3931(d)). If military status cannot be determined, the court may require a bond to protect the defendant if the judgment is later set aside.

California's waiting period. California's own clock runs separately. Under Family Code section 2339, a judgment of dissolution cannot become final to end the marriage until six months have passed from the date of service of the summons and petition or the date of the respondent's appearance, whichever occurs first; the court may extend that period for good cause. In a high-asset case, SCRA stays, valuation work and federal benefit questions can push resolution well past that minimum. The military divorce process page lays out the sequence.

Community Property, Disclosure, and Valuation in High-Asset Cases

Disclosure is the foundation of any property division. Under Family Code section 2104(f), the petitioner serves a preliminary declaration of disclosure with the petition or within 60 days of filing it, and the respondent serves one with the response or within 60 days of filing it; when the summons and petition were served by publication or posting under a court order and the respondent files a response before a default judgment is entered, the petitioner serves within 30 days of the response being filed. The parties may extend these periods by written agreement, or the court by order, and section 2104(a) recognizes exceptions, including a court order for good cause. Under Family Code section 2105(a), each party serves a final declaration of disclosure and a current income and expense declaration before or at the time the parties enter into an agreement resolving 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, unless the court orders otherwise for good cause. The parties may mutually waive the final declaration, but under section 2105(d) that waiver must be executed under penalty of perjury, in open court or by separate stipulation.

Valuation date. Valuation timing surprises many people. Under Family Code section 2552, the court values assets and liabilities as near as practicable to the time of trial. On 30 days' notice and for good cause, it may value all or part of them at a date after separation and before trial, to divide the community estate equally in an equitable manner.

Reimbursement and apportionment. Two ideas are often confused:

• Section 2640 reimbursement. In the division of the community estate, a spouse who contributed to the acquisition of community property is reimbursed for those contributions to the extent the spouse traces them to a separate-property source, unless the spouse made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver (section 2640(b)). Separate-property contributions to the acquisition of the other spouse's separate property during the marriage are also reimbursed, unless there has been a transmutation in writing or a written waiver of the right (section 2640(c)). Either way, the amount is without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division. "Contributions" include down payments, payments for improvements and payments that reduce the principal of a loan used to finance the purchase or improvement of the property, but not payments of interest on the loan or payments for maintenance, insurance or taxation of the property.
• Moore/Marsden apportionment. This is the opposite situation: community money paying down a loan on one spouse's separate-property home, which can give the community an interest in that home.

High-asset military cases often call for forensic accounting, business valuation and pension actuarial analysis, each a distinct category of professional work. The military divorce checklist gathers the documents these issues tend to involve.

About Military Family Law Advocates

Military Family Law Advocates practises California family law only. Its focus is military divorce and military family law, with San Diego County as its primary service area and matters in Orange County, Los Angeles County and elsewhere in California.

A case filed in the Superior Court of California, County of San Diego applies the same Family Code sections as one filed in Orange County or Los Angeles County, and the federal statutes apply the same way in each. The firm is not affiliated with the Department of Defense, any military branch or the federal government.

Talk With Military Family Law Advocates About a High-Asset Military Divorce in San Diego County

A high-asset military divorce rarely turns on one rule. It turns on how the retired pay order, the SBP election, the TRICARE overlap, the disclosure timeline and any deployment custody order fit together in a single judgment. A consultation is a place to raise those questions.

To talk with the firm about a high-asset military divorce, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.

About this firm and this page. 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.