Military Spouse Divorce After 10 Years in California: What the Law Actually Provides

After ten years of a military marriage, a California divorce does not hand either spouse a fixed share of retired pay. A California court divides retired pay as community property. The 10/10 rule decides only whether the federal pay agency can pay a former spouse's share directly. Health coverage, survivor benefits and support each follow separate rules.

Most people facing a divorce after a decade of military life arrive with a number in their heads. Somebody at a spouse group, a friend at the last duty station, or a relative heard that "ten years" means half the pension, or lifetime health care, or nothing at all. A spouse in San Diego County who moved with every set of orders, or a service member who is still on active duty and wondering what a judge will do with a retirement not yet earned, is trying to sort the rumor from the rule before decisions get made.

This article walks through what the ten-year mark actually changes, what it does not, and how California law and federal law fit together on retired pay, TRICARE, the Survivor Benefit Plan, the divorce procedure, custody and support.

What the 10-Year Mark Actually Means Under Federal Law

The federal law that lets a state court treat military retired pay as divisible property is the Uniformed Services Former Spouses' Protection Act, or USFSPA, at 10 U.S.C. § 1408. Retired pay is the monthly payment a member receives after retiring from the service. The agency that pays it is the Defense Finance and Accounting Service, or DFAS, the federal agency that administers military pay.

The "10/10 rule" is a DFAS payment rule. Its name describes the overlap it looks at: years of marriage that coincide with years of creditable service, meaning service that counts toward the member's eligibility for retirement. When the overlap is long enough, DFAS can send a former spouse's property share of retired pay to the former spouse directly. That is all the rule decides.

The USFSPA does not automatically give a former spouse any share of retired pay. A share comes only from a state court order dividing retired pay under the governing state law. Under 10 U.S.C. § 1408(d)(1), after effective service of a court order that "specifically provid[es] for the payment of an amount of the disposable retired pay," DFAS makes payments in the amount the order specifies, subject to the section's limits.

A shorter overlap does not stop a California court from dividing retired pay. The division is still valid. The difference is practical: without direct payment from DFAS, the former spouse collects the share from the member, and the court's order is what makes that obligation enforceable.

How California Divides Military Retired Pay

Family Code section 760 provides that, except as otherwise provided by statute, property acquired during the marriage while domiciled in California is community property. Retirement earned through military service during a California marriage falls under that rule to the extent it was earned while the couple was domiciled here.

Courts generally identify the community share with a time-rule fraction: the years of marriage that overlap creditable service, divided by the member's total years of service at retirement. Service before the marriage or after separation sits outside the community fraction.

The community estate is not valued as of the date of separation. Family Code section 2552 directs the court to value assets and liabilities as near as practicable to the time of trial, and, on 30 days' notice and a showing of good cause, it may value all or part of the estate at a date after separation and before trial.

For DFAS to honor the order, it must meet USFSPA requirements. DFAS explains on its legal overview page that when parties divorce while the member is still on active duty, the award may be expressed by an acceptable formula or hypothetical retired pay award; that a percentage award is construed as a percentage of disposable retired pay; and that a Qualified Domestic Relations Order is not required. A former spouse applies for payment on DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay.

According to the DFAS maximum payment page, "disposable retired pay" is gross retired pay less authorized deductions, and the most DFAS can pay a former spouse under the USFSPA is 50 percent of disposable retired pay. For divorces effective on or after February 3, 1991, one listed deduction is retired pay waived to receive compensation under Title 38, the VA's title of the Code.

That point matters because military retired pay, VA disability compensation, Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC) are four different payments. Each has its own rules, and they are not one "military pension." Which one a member receives, and in what mix, can change what DFAS treats as disposable retired pay, so the label on each payment is worth getting right in the judgment. For divorces finalized long ago, see the article on military retirement after divorce.

TRICARE Health Coverage After Divorce

TRICARE is the federal health program for service members, retirees and their families. For a former spouse, continued eligibility turns on a longer marriage than ten years. Under 10 U.S.C. § 1072(2)(F), an unremarried former spouse counts as a dependent 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, and the former spouse does not have medical coverage under an employer-sponsored health plan.

The TRICARE former spouses page describes this as the 20-20-20 criteria: all 20 years of marriage overlap the 20 years of creditable service. A former spouse who qualifies receives an ID card in their own name, and eligibility is tracked under their own Social Security number.

A former spouse whose marriage overlapped service for ten years does not meet those criteria. In practical terms, health coverage after the decree usually has to come from somewhere other than TRICARE, such as an employer plan or individual coverage. For a broader look at what continues and what ends, see military spouse benefits after divorce.

The Survivor Benefit Plan and What Happens to It in Divorce

The Survivor Benefit Plan, or SBP, is a federal program that pays a monthly annuity to a beneficiary after a retiree's death. Under 10 U.S.C. § 1450(a), the annuity is paid effective as of the first day after the member's death (or another day the member provides for), to beneficiaries including an eligible surviving spouse or eligible former spouse.

The size of the annuity is figured from a "base amount," and 10 U.S.C. § 1447(6) defines that term differently depending on the kind of annuity. A standard annuity and a reserve-component annuity, for example, use different definitions.

Former spouse coverage can arise in two general ways: the member elects it, or a court order requires it. Federal law treats former spouse coverage as its own category, and 10 U.S.C. § 1448(b) addresses it alongside insurable-interest coverage. Spouse coverage in place during the marriage does not convert itself into former spouse coverage when the marriage ends.

When the member does not make the election, federal law gives a former spouse a limited window after the divorce to ask that the election be deemed made under the court order. Missing that window can mean losing the coverage altogether. SBP and the division of retired pay are separate issues, and a judgment can address one while staying silent on the other. More detail is in the article on the Survivor Benefit Plan.

Sorting out retirement, health coverage and survivor protection at the same time is a lot for anyone to hold, especially when the other spouse may be deployed or training far from home.

Servicemembers Civil Relief Act Protections During the Divorce Case

The Servicemembers Civil Relief Act, or SCRA, is a federal law giving service members certain procedural protections in civil cases, including divorce and custody cases. It does not prevent a divorce. It governs how and when the case moves forward.

Under 50 U.S.C. § 3932, when a servicemember who is a party has received notice of the case, the court may on its own motion, and must on the servicemember's application, stay the case for at least 90 days. The application includes a statement of how current duty materially affects the ability to appear and when the member will be available, plus a letter from the commanding officer that duty prevents appearance and leave is not authorized. Applying for a stay is not an appearance and does not waive defenses.

Under 50 U.S.C. § 3931, before entering a default judgment the court must require an affidavit stating whether the defendant is in military service. A default judgment entered during service, or within 60 days after release, can be reopened on an application filed no later than 90 days after release, if the member was materially affected by service and has a meritorious or legal defense.

A PCS, or Permanent Change of Station, is an order moving a member to a new duty station. Orders, deployments and PCS moves can add time and steps to a case. In San Diego County, these cases are heard by the Superior Court of California, County of San Diego. Related procedure appears in the military divorce checklist.

Child Custody and Support When a Parent Is in the Military

Custody decisions rest on the child's best interest under Family Code section 3011. The factors the court considers include the child's health, safety and welfare; any history of abuse; 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. If the court finds a parent perpetrated domestic violence within the previous five years, Family Code section 3044(a) creates a rebuttable presumption against custody to that parent. 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 it, in whole or in part (Family Code section 3044(b)(1)).

The court grants a parent reasonable visitation when it is shown that visitation would be in the child's best interest (Family Code section 3100(a)).

When custody or visitation is contested, the court must set the contested issues for mediation (Family Code section 3170). Domestic violence cases are handled by Family Court Services under a separate written protocol approved by the Judicial Council (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 custody or visitation recommendation if the mediator has first given it in writing to the parties and their attorneys, including counsel for any minor children, before the hearing. The judge decides.

Military duty has its own rule. Under Family Code section 3047(b)(1), when temporary duty, deployment or mobilization orders materially affect a parent's custody or visitation, a necessary change is a temporary order made without prejudice, reviewed when the parent returns. The court may, on the relocating parent's motion, grant reasonable visitation to a stepparent, grandparent or other family member only if it makes the findings section 3047(b)(3)(B) lists. That visitation is not automatic.

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 (Family Code section 3024). The notice goes by mail, return receipt requested, with a copy to that parent's counsel of record.

Child support follows California's statewide guideline. BAH, the Basic Allowance for Housing, and BAS, the Basic Allowance for Subsistence, are military allowances for housing and food that form part of a member's compensation picture.

Spousal Support and the Length of the Marriage

Family Code section 4336 matters most here. For retaining jurisdiction, a marriage of 10 years or more, from the date of marriage to the date of separation, is presumed to be a marriage of long duration, though the court may consider periods of separation during the marriage. In a long marriage, the court retains jurisdiction over support indefinitely unless the parties agree in writing otherwise or the court terminates support.

Retained jurisdiction does not by itself mean that support will be awarded. Under Family Code section 4320, the court considers a list of circumstances, including whether each party's earning capacity can maintain the marital standard of living and the supported party's marketable skills and need for training. A spouse who left jobs behind with each set of orders often finds those skills factor into the analysis.

Temporary support, sometimes called pendente lite support, covers the period while the case is pending. Long-term support is set at judgment. Family Code section 2030 also directs the court to ensure each party has access to legal representation, if necessary by ordering one party to pay the other's reasonable fees and costs based on income and needs. More on support appears in military spousal support.

Financial Disclosures and the California Divorce Process

Disclosure has firm timing. Under Family Code section 2104(f), the preliminary declaration of disclosure is served with the petition or 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), the final declaration of disclosure and a current income and expense declaration are due 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. A mutual waiver of the final declaration must be executed under penalty of perjury in open court or by separate stipulation (section 2105(d)).

No judgment ends the marriage until six months after the date the summons and petition are served or the date the respondent appears, whichever occurs first (Family Code section 2339). The court may extend that period for good cause.

Under Family Code section 2640, a spouse who put separate property into community property is generally reimbursed for those contributions, unless that spouse made a written waiver. The Moore/Marsden apportionment addresses the opposite case: community money paying down a loan on one spouse's separate-property home. Summary dissolution, a simplified process for qualifying couples, has dollar limits set by statute and adjusted periodically (Family Code section 2400(b)).

If You'd Like to Talk Through What Ten Years Means for You

The ten-year mark touches several rules at once, and the answers depend on dates: when the marriage began, when service started, when separation happened, and whether retirement has already begun. A consultation can cover how those dates interact with retired pay, SBP, support and custody, and which payments are in play under a California order. Military Family Law Advocates practises California family law only, so questions about other states' law belong with counsel licensed there. To discuss California military divorce law and schedule a confidential consultation, call Military Family Law Advocates at 888-771-0460.