Divorcing a Military Retiree in California

Divorcing a military retiree in California means a California court divides the community share of military retired pay under state law. Federal law controls what counts as divisible, how DFAS pays a former spouse, whether Survivor Benefit Plan coverage continues, and who keeps TRICARE. No federal law hands a former spouse a share automatically. A court order does.

Most people searching for help with a military retiree divorce in San Diego are carrying years of moves, deployments and deferred plans into this moment. The retirement check was supposed to be the payoff for all of it. A spouse who followed a career from duty station to duty station wants to know whether that pension is partly theirs. A retiree wants to know how much of it leaves with the marriage. Both are often hearing conflicting versions of the "10-year rule" from friends, forums and the commissary line. This page sets out the California and federal rules that actually decide those questions, beginning with San Diego County, where Military Family Law Advocates concentrates its practice.

How California Community Property Law Applies to Military Retired Pay

Under Family Code section 760, property acquired by a married person during the marriage while domiciled in California is community property, except as otherwise provided by statute. "Domiciled" means California is the place a person treats as their permanent home. That is not always the same as where orders happen to send them. A sailor who claims another state as home while assigned to San Diego may not be domiciled in California, and a spouse who has lived in California through three tours may be. Domicile can shape which years of service count as community.

Retired pay is the monthly payment a member earns through military service and receives after retirement. The part of it earned during the marriage while the couple was domiciled in California is community property. Under Family Code section 2550, the court divides the community estate equally, unless the parties agree in writing or by oral stipulation in open court, or unless the Family Code provides otherwise. The equal division applies to the community portion. Service before the marriage, or after separation, is generally not part of it.

Family Code section 2610 adds a retirement-specific rule. The court must make whatever orders are necessary or appropriate to ensure each party receives their full community share in a retirement plan, including survivor and death benefits. The same section bars an order that would force a plan to pay increased benefits, or to pay a party before the member retires unless the plan allows it.

Military retired pay has company, and the payments do not all follow the same rules:

• VA disability compensation is paid by the Department of Veterans Affairs for a service-connected disability.
• Concurrent Retirement and Disability Pay (CRDP) is a separate payment that lets some retirees with VA-rated disabilities receive retired pay and VA compensation together.
• Combat-Related Special Compensation (CRSC) is a separate payment for some retirees whose disabilities are combat-related.

These are four different payments. Treating them as one "military pension" is where many settlement errors begin.

In San Diego County, family law cases are heard by the Superior Court of California, County of San Diego. The same California rules govern a divorce filed in Orange County or Los Angeles County. The federal overlay described below applies in every California court.

The USFSPA and What a Court Order Can Divide

The Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408, is the federal statute that lets a state court treat a member's retired pay as marital property. Under 10 U.S.C. § 1408(c)(1), a court may treat disposable retired pay either as property solely of the member or as property of the member and spouse "in accordance with the law of the jurisdiction of such court." In California, that law is community property.

That wording matters. The USFSPA does not give a former spouse anything on its own. It permits a state court to divide retired pay. Any share a former spouse receives comes from a California court order dividing it.

Disposable retired pay is, in plain terms, gross retired pay minus the deductions federal law allows. The Defense Finance and Accounting Service (DFAS) is the Department of Defense agency that pays military retired pay. On its maximum payment page, DFAS lists the deductions that apply for divorces effective on or after February 3, 1991:

• amounts owed to the United States for overpayments and recoupments;
• court-martial forfeitures;
• retired pay waived to receive compensation under Title 5 (federal civilian employment) or Title 38 (Department of Veterans Affairs);
• disability retired pay under 10 U.S.C. Chapter 61, computed as that page describes; and
• Survivor Benefit Plan premiums for a spouse or former spouse who is receiving part of the retired pay under a court order.

DFAS also says that when a former spouse is awarded a percentage, changes in these deductions change the amount the former spouse receives.

That third deduction is why VA disability compensation sits apart from retired pay. Retired pay waived to receive VA compensation is subtracted before the divisible amount is calculated. For a former spouse, this can mean a share that looked fixed at the time of divorce later shrinks if the retiree's disability rating changes. CRDP and CRSC are separate programs again. Whether, and how, either one affects a particular case depends on the facts and on rules beyond the scope of this page.

Three further limits come from the statute itself:

• Older decrees. A court may not divide retired pay where a final decree issued before June 25, 1981 did not treat retired pay as property, or reserve jurisdiction to do so (10 U.S.C. § 1408(c)(1)).
• No transfer. The section creates no interest a former spouse can sell, assign or pass by inheritance (10 U.S.C. § 1408(c)(2)).
• No forced retirement. No court may order a member to apply for retirement, or to retire at a particular time, to make a payment happen (10 U.S.C. § 1408(c)(3)).

Timing adds another wrinkle for members who divorce before retiring. According to the DFAS legal overview, for divorces entered after December 23, 2016, where the order becomes final before retirement, disposable pay for the award is 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. The same page says an award can be expressed by an acceptable formula or hypothetical retired pay award, and that a Qualified Domestic Relations Order is not required if the award is set out in the court order. The site's guide to the military retirement division order walks through how those orders are framed.

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

The 10/10 rule decides one narrow question: whether DFAS can send a former spouse's share of retired pay directly to the former spouse. It requires at least 10 years of marriage overlapping at least 10 years of the member's creditable military service (10 U.S.C. § 1408(d)(2)). That is the whole rule. It does not decide whether retired pay can be divided.

This is probably the most repeated misunderstanding in military divorce, in San Diego and everywhere else. A marriage too short to meet the 10/10 overlap can still produce a California order dividing the community share of retired pay. The difference is collection. When DFAS cannot pay directly, the court order still binds the member, and the former spouse collects the share from the member rather than from DFAS.

When direct payment is available, the former spouse applies to DFAS. DFAS's How to Apply page says the application is a completed DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay, signed by the former spouse. It is served with a copy of the court order certified by the clerk of court, by fax or by mail. That page also says:

• the application should state which awards the former spouse is seeking to enforce, such as alimony, child support or division of retired pay as property;
• if it does not, only the retired-pay-as-property award will be enforced; and
• a retired-pay-as-property award must be expressed as a fixed dollar amount or a percentage of disposable retired pay, or, if the divorce came before retirement, as an acceptable formula or hypothetical award.

On timing, the DFAS Receiving Payments page says that once the USFSPA requirements are met, payments must begin no later than 90 days after effective service of a complete application. If the member has not yet retired, payments begin no later than 90 days after the member becomes entitled to retired pay.

Former spouses in California who were divorced years ago, and whose decree never mentioned retired pay, face a different question. The site covers it separately in its page on claiming retirement after divorce.

The Survivor Benefit Plan (SBP) in a California Divorce

The Survivor Benefit Plan (SBP) is a federal program that pays a monthly annuity to a designated beneficiary after a retired member dies. Under 10 U.S.C. § 1450(a), the annuity is paid effective as of the first day after the member's death, or on another day the member provides for under subsection (j). The beneficiaries that section lists include "the eligible former spouse."

SBP matters in a divorce for a simple reason. Retired pay stops when the retiree dies, and a former spouse's court-ordered share of it stops with it. Without former-spouse SBP coverage, the income can end with no replacement. That is why SBP is usually one of the most closely negotiated points in a retiree divorce, alongside the division of retired pay itself.

California law gives the court the tool. Family Code section 2610(a)(2) allows the court to order a party to elect a survivor benefit annuity for the other party when a retirement plan offers that election. It may not order a plan to provide increased benefits based on actuarial value. Federal law sets out who the Plan applies to and the elections a member may make. For example, 10 U.S.C. § 1448(b)(1) covers "insurable interest" elections for an unmarried member without a dependent child, and it allows some of those elections to be terminated, though not one made for a former spouse.

The size of the annuity starts from the "base amount." Under 10 U.S.C. § 1447(6), that term is defined differently depending on the kind of annuity. For a standard annuity where the person dies after becoming entitled to retired pay, it is the monthly retired pay to which the person was entitled, determined as that clause describes. Other kinds of annuity follow other clauses, so the base amount in a given case depends on which annuity applies.

Deadlines matter here as well. DFAS's How to Apply page describes one way former-spouse SBP coverage can arise: a member may elect it for a former spouse who was originally a spouse beneficiary, provided the divorce came after the member became eligible for retired pay. It also says a former spouse may make a "deemed election" on their own behalf within one year of the court order requiring SBP coverage. The site's page on benefits after divorce discusses SBP alongside the other benefits a former spouse may keep.

TRICARE and Other Benefits After Divorce

TRICARE is the military's health coverage program. A former spouse's continued eligibility turns on the federal definition of "dependent" in 10 U.S.C. § 1072(2)(F). That definition includes an unremarried former spouse who meets both of these conditions:

• on the date of the final decree, had been married to the member for at least 20 years, during which the member performed at least 20 years of service creditable toward retired pay; and
• does not have medical coverage under an employer-sponsored health plan.

This is often called the 20/20/20 rule, because the 20 years of marriage and the 20 years of service must overlap.

Federal rules also provide more limited, transitional coverage for some former spouses whose overlap is shorter. The details of that coverage are worth confirming against current federal guidance for the specific dates involved. A former spouse who falls outside these categories is not a dependent under section 1072(2)(F). That former spouse will need other health coverage after the divorce.

For a San Diego County spouse who left a career to keep a household running through repeated PCS moves, these thresholds can matter as much as the retired pay division. Health coverage is also one of the circumstances a court weighs when it sets spousal support. Family Code section 4320 directs the court to consider factors including:

• the supported party's earning capacity and marketable skills;
• periods of unemployment incurred during the marriage to attend to domestic duties;
• the needs of each party based on the marital standard of living;
• the age and health of the parties; and
• the balance of the hardships to each party.

Jurisdiction, Service of Process, and the Servicemembers Civil Relief Act

Military families often have three possible homes: where the member is stationed, where the spouse lives, and the state on the member's paperwork. A California court can end a marriage based on the parties' California residence. Dividing military retired pay is a separate question. Federal law adds its own conditions on which state court may divide a member's retired pay, and those conditions are not the same as the conditions for ending the marriage. In San Diego and across Southern California, where many members are domiciled elsewhere, that difference can decide where a case is filed.

A permanent change of station (PCS) is a military order moving a member to a new assigned location. A PCS during a case can move the member out of California, change how the member is served with the summons and petition, and raise new jurisdiction questions. The site's overview of the military divorce process covers the filing sequence in more detail.

The Servicemembers Civil Relief Act (SCRA) is a federal law that gives procedural protections in civil cases to people in military service. Most retirees are no longer in military service, so the SCRA most often matters when the member is still on active duty or approaching retirement. It contains two separate protections:

• Stay of proceedings — 50 U.S.C. § 3932. This applies to a party who is in military service, or within 90 days after release, 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 it must stay the case for at least 90 days if the application includes two letters. The first sets out how current military duty materially affects the servicemember's ability to appear and states a date the servicemember will be available. The second, from the commanding officer, states that current duty prevents appearance and that military leave is not authorized. Applying for a stay does not count as an appearance for jurisdictional purposes and does not waive defenses, including lack of personal jurisdiction.
• Default judgment protection — 50 U.S.C. § 3931. This applies when the defendant does not appear, including in a child custody proceeding. Before entering judgment, the court must require an affidavit stating whether the defendant is in military service, with supporting facts, or stating that this cannot be determined. 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 military status cannot be determined, the court may require a bond.

Several California timing rules apply to every case:

• Six-month waiting period. Under Family Code section 2339, no judgment of dissolution ends the marriage until six months have passed from the date of service of a copy of the summons and petition or the date the respondent appears in the case, whichever occurs first. The court may extend that period for good cause.
• Preliminary declaration of disclosure. Under Family Code section 2104(f), each party serves it with the petition or response, or within 60 days of filing it. The parties may extend that time by written agreement, or the court may extend it by order. The preliminary declaration must list all assets and liabilities, which includes the member's interest in retired pay.
• Final declaration of disclosure. Under Family Code section 2105(a), the final declaration 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. If the case goes to trial, they are due no later than 45 days before the first assigned trial date. The parties may mutually waive the final declaration only by a waiver executed under penalty of perjury in open court or by separate stipulation (section 2105(d)).

How Military Family Law Advocates Approaches These Cases

Military Family Law Advocates focuses on military divorce and military family law in California. San Diego County is its primary service area, followed by Orange County and Los Angeles County. The firm practices California family law only, and it is licensed in California. A retiree or former spouse whose case belongs in another state's courts will need counsel licensed there.

Within that scope, the firm's practice centers on the issues this page describes:

• the division of military retired pay under the USFSPA and California community property law;
• the line between retired pay, VA disability compensation, CRDP and CRSC;
• Survivor Benefit Plan elections and deadlines;
• TRICARE eligibility for former spouses;
• jurisdiction and service when a member is stationed in, or moves out of, California;
• SCRA stays and default protections; and
• custody and support questions in military families, with the broader topic of military retirement division running through many of them.

The law explained here is the same law a Superior Court of California judge in San Diego County applies. What it means for one family depends on dates of marriage, service and separation, on domicile history, and on the wording of any existing orders.

Talk Through a Military Retiree Divorce in San Diego County

A retiree divorce turns on details that rarely fit a general rule. The dates of marriage, service and separation matter. So does where each spouse was domiciled along the way, whether any VA compensation is involved, and whether an SBP election was ever made or ordered. A consultation is a place to raise those questions about how the California and federal rules above may bear on a situation. Military Family Law Advocates practices California family law only, so it can address the parts of the case that belong in a California court, from San Diego County to Orange County and Los Angeles County.

To discuss how California and federal rules govern military retired pay, survivor benefits and coverage in a California divorce, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.

About this firm and this page. This site is not affiliated with, endorsed by, or connected to the U.S. Department of Defense, any military branch or the federal government.