Military Spouse Rights During Divorce in California

In a California divorce, a military spouse can be awarded a share of the community portion of the servicemember's retired pay, spousal support, a share of other community property, and former-spouse Survivor Benefit Plan coverage. Some former spouses also keep TRICARE health coverage. Most of these rights depend on a court order; very few arise automatically.

A military divorce in California can come with a tangle of half-heard rules: something about ten years, something about twenty, a worry that a deployment will freeze everything, and a question nobody seems to answer cleanly about what happens to the pension. A spouse may have moved with the service from one assignment to the next and set a career aside along the way, and may now be in San Diego County trying to work out what is actually theirs to ask for. This page sorts those rules by where they come from, so the pieces start to fit together.

What Military Spouse Rights in a California Divorce Actually Means

"Military spouse rights" is not one law. It draws on two separate bodies of law that work side by side, and neither one hands out benefits on its own.

California family law decides how property is divided, whether spousal support is ordered and how custody works. Its starting point is community property: under Family Code section 760, except as otherwise provided by statute, all property acquired by a married person during the marriage while domiciled in California is community property. "Domiciled" means the place a person treats as their permanent legal home, which is not always the same as where they are stationed.

Federal law controls the military benefits themselves. The main statutes are:

• The Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. § 1408, which lets state courts treat military retired pay as property. Retired pay is the monthly payment a member receives after retiring from the uniformed services.
• The Servicemembers Civil Relief Act (SCRA), which can slow a court case involving a servicemember (50 U.S.C. §§ 3931 and 3932).
• The Survivor Benefit Plan (SBP), 10 U.S.C. §§ 1447–1455, which can pay a monthly annuity to a survivor after the member dies.

Two more terms come up constantly. DFAS, the Defense Finance and Accounting Service, is the federal agency that pays military retired pay and can pay a former spouse's court-ordered share. TRICARE is the military's health care program. A PCS, or permanent change of station, is an order moving a member to a new duty location.

The central point is simple and often misunderstood. The USFSPA does not automatically give a former spouse any share of retired pay. A former spouse's share comes from a state court order dividing the retired pay under state law. Former-spouse SBP coverage likewise depends on an election, which a divorce order can require, as discussed below. The federal programs set the rules; the California court order is what applies them to a particular family. A broader walk-through of the process sits in the guide to military spouse divorce in California.

California Community Property and Military Retired Pay

Federal law opens the door, and California law decides what walks through it. Under 10 U.S.C. § 1408(c)(1), subject to the section's limits, 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."

That word "may" matters. The federal statute permits division; California law supplies the rule. Because the part of retired pay earned during the marriage while the couple was domiciled in California is community property, it falls under Family Code section 2550, which requires the court to divide the community estate equally except upon the parties' written agreement, their oral stipulation in open court, or as otherwise provided in this division. The portion earned before the marriage, or after separation, is treated differently. The federal statute also has firm limits: it does not authorize any court to order a member to apply for retirement or to retire at a particular time (10 U.S.C. § 1408(c)(3)).

Disposable retired pay is, in DFAS's words, "gross retired pay less authorized deductions." According to DFAS's maximum payment guidance, those deductions include, among others, amounts of retired pay waived to receive compensation from the Department of Veterans Affairs and certain disability retired pay. DFAS also states that the most it can pay a former spouse under the USFSPA is 50 percent of the member's disposable retired pay.

Several payments that people lump together are legally distinct. Military retired pay is one thing. VA disability compensation is a separate payment. Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC) are separate again, each with its own rules. A divorce order that treats them as one "military pension" invites confusion, and how each is handled depends on the specific facts and law.

The 10/10 rule is a federal condition on direct payment. It turns on how long the marriage and the member's creditable military service overlapped. It decides only whether DFAS can send the former spouse's share straight to the former spouse. It does not decide whether retired pay can be divided at all. When the overlap is shorter, a California court can still divide the retired pay; the former spouse simply collects from the member rather than from DFAS.

When direct payment is available, the former spouse applies on DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay. DFAS's application instructions say the form goes in with a copy of the court order certified by the clerk of court, and that a retired pay award "must be expressed as a fixed dollar amount or percentage of disposable retired pay." If the divorce happens before retirement, the order can use a formula or hypothetical retired pay award. When the decree becomes final before the member retires, 10 U.S.C. § 1408 generally computes the retired pay for that division from the member's retired pay base and years of service on the date of the decree, increased by cost-of-living adjustments, not from service after the decree. Once the requirements are met, DFAS's payment guidance says payments must begin no later than 90 days after effective service of a complete application. The drafting details are covered in the step-by-step guide to a military retirement order, and the application itself in the page on DFAS former spouse payments.

One timing rule trips people up. The court values community assets and debts as near as practicable to the time of trial; on 30 days' notice and for good cause, it may use a date after separation and before trial (Family Code section 2552).

The Servicemembers Civil Relief Act and Divorce Proceedings

A spouse filing for divorce against someone on active duty may be told that "the military can stop the case." That overstates it. The SCRA, the federal law found at 50 U.S.C. § 3901 and the sections that follow it, gives the servicemember two protections that matter here, and neither blocks a divorce.

Protection against default judgments, 50 U.S.C. § 3931. A default judgment is one entered because the other side never responded. Before entering judgment for the person who filed, the court must require that person to file an affidavit stating whether the other party is in military service, with supporting facts, or stating that they cannot tell. If it appears the other party is in military service, the court may not enter judgment until it appoints an attorney to represent that party. If a default judgment is entered during service, or within 60 days after release, the court must reopen it on the servicemember's application if the servicemember was materially affected by service in making a defense and has a meritorious or legal defense. That application must be filed no later than 90 days after release from service.

Stay of proceedings, 50 U.S.C. § 3932. This section applies to any civil action, "including any child custody proceeding," when the servicemember is in 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 must stay it for not less than 90 days on the servicemember's application, if the application includes a statement of how current duty materially affects the ability to appear and when the servicemember will be available, plus a letter from the commanding officer saying current duty prevents appearance and leave is not authorized.

For the military spouse, the practical effect is delay, not denial. A stay pauses the case; it does not end it. These protections belong to the servicemember. The civilian spouse cannot invoke them to slow the case down.

TRICARE and the 20/20/20 Rule

Health coverage is often the question that keeps a long-married military spouse up at night, especially one who has no employer plan to fall back on. Federal law answers it through the definition of "dependent" in 10 U.S.C. § 1072(2)(F).

That definition includes "the unremarried former spouse of a member or former member" who, on the date of the final decree, "had been married to the member or former member for a period of at least 20 years during which period the member or former member performed at least 20 years of service which is creditable in determining that member's or former member's eligibility for retired or retainer pay," and who "does not have medical coverage under an employer-sponsored health plan."

This is what people call the 20/20/20 rule: at least 20 years of marriage, at least 20 years of creditable service, and at least 20 years of overlap between the two. The statute adds two conditions that are easy to miss. The former spouse must be unremarried, so remarriage ends eligibility, and must not have employer-sponsored health coverage.

A former spouse whose marriage and service overlapped for a shorter but still substantial period may be eligible for transitional TRICARE coverage, which is temporary rather than permanent. Commissary and exchange privileges follow related but not identical rules. Military OneSource, a Department of Defense resource, publishes current eligibility information. Benefits that continue after divorce are gathered in one place on the page about military spouse benefits after divorce.

The Survivor Benefit Plan and What a Divorce Order Can Protect

Retired pay stops when the member dies. DFAS states that the right to USFSPA payments ends on the death of the member or former spouse, unless the order ends them earlier. The SBP is what can keep income flowing to a former spouse after that point.

The SBP is a federal program, set out in 10 U.S.C. §§ 1447–1455, that pays 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 the statute), and an eligible former spouse is among the listed beneficiaries.

How much the annuity is worth starts from the "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, for example, it is the monthly retired pay (determined without regard to certain reductions) to which the person was entitled when he became eligible for that pay, or later became entitled by being advanced on the retired list, performing active duty, or being transferred from the temporary disability retired list to the permanent disability retired list. Other kinds of annuity use other definitions.

SBP coverage and the division of retired pay are separate protections. A California divorce judgment can address both, but dividing retired pay does not create SBP coverage, and existing spouse coverage does not turn into former-spouse coverage by itself. A divorce order can require the member to elect former-spouse coverage. DFAS also describes a "deemed election," in which the former spouse starts coverage on their own behalf, and says it must be made "within one year of the issuance of the court order requiring SBP coverage." When a decree says nothing about the SBP, the former spouse may lose the chance to be named beneficiary at all. Under 10 U.S.C. § 1455(b), regulations must provide that, before the date a member becomes entitled to retired pay, a married member and spouse be informed of the elections available under the plan and their effects. More detail is on the Survivor Benefit Plan page.

Spousal Support, Child Custody, and Other California Family Law Issues

California's ordinary family law rules apply in a military divorce, with a few added layers when service obligations touch the family.

Spousal support. Family Code section 4320 requires the court to consider a list of circumstances, including each party's earning capacity measured against the marital standard of living, the supported spouse's marketable skills and any career impairment from time spent on domestic duties, contributions to the supporting spouse's education or career, the supporting spouse's ability to pay, and each party's needs. For a spouse whose work history was interrupted by PCS moves, the factors about impaired earning capacity can carry real weight. Military allowances such as BAH (Basic Allowance for Housing) and BAS (Basic Allowance for Subsistence) are part of a member's compensation and may be considered when the court looks at ability to pay. Temporary support while the case is pending is available under Family Code section 3600. The guide to military spousal support goes further.

Financial disclosure. Each spouse serves a preliminary declaration of disclosure 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 (Family Code section 2104(f)). The final declaration of disclosure and a current income and expense declaration are due 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 (Family Code section 2105(a)). A mutual waiver of the final declaration must be executed under penalty of perjury in open court or by separate stipulation (Family Code section 2105(d)).

Custody and deployment. When a parent with custody or visitation receives temporary duty, deployment or mobilization orders that materially affect parenting time, any needed change is a temporary order made without prejudice, reviewed when the parent returns (Family Code section 3047(b)(1)). On review there is a presumption that the earlier order comes back, unless the court finds that is not in the child's best interest (section 3047(b)(2)). On the relocating parent's motion, the court may grant reasonable visitation to a stepparent, grandparent or other family member during deployment, but only if it makes the findings section 3047(b)(3)(B) lists; that visitation is never automatic.

Mediation. When custody or visitation is contested, the court must set the contested issues for mediation (Family Code section 3170(a)). 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, this 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. The judge makes the decision.

Waiting period. A judgment of dissolution is not final to end the marriage until six months after the date the summons and petition are served or the date the respondent appears in the case, whichever occurs first (Family Code section 2339).

Jurisdiction and Where a Military Divorce Is Filed in California

Military families move often, so the question of where to file deserves a careful look. Under Family Code section 2320(a), a judgment of dissolution generally may not be entered unless one spouse has been a resident of California for six months, and of the county where the case is filed for three months, immediately before filing.

A member stationed in California may be able to treat the state as home even if their home of record is elsewhere, depending on the facts. PCS orders complicate the picture. When the member transfers out and the spouse stays in, say, San Diego County, the spouse's own residence can satisfy the requirement. Family law cases in San Diego County are heard by the Superior Court of California, County of San Diego.

Dividing retired pay raises a separate jurisdiction question. Federal law limits when a state court can divide a member's retired pay, and the court's power over the member personally matters, not just where the spouse lives. That issue is worth sorting out before filing, and it appears on the military divorce checklist.

If You'd Like to Talk With the Firm

Most of the rights described here take shape through the wording of a California order. A consultation is a place to raise questions about them. Military Family Law Advocates practises California family law only.

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