Second Wife and Military Pension: What California Law Actually Governs

A second wife has no claim to the share of military retired pay a court awarded to a first wife. In California, though, retired pay earned during her own marriage, while the couple is domiciled here, is community property she shares in. Survivor Benefit Plan coverage works differently: one spouse or former spouse holds it, and a court-ordered former spouse election can leave her without it.

Most people facing this question are carrying two marriages at once: a service member stationed in San Diego County who remarried years after a first divorce, or a current spouse who has just learned that an earlier judgment mentions retired pay and survivor coverage. The worry is usually the same from both sides: what did the first divorce already take, and what is left for the family that exists now? The answer depends on federal law, California community property law and, above all, the exact words of each court order.

This page walks through each piece in order: what federal law permits, what a prior order controls, what the 10/10 rule really decides, how survivor coverage is allocated, how California treats a second marriage's share, and what changes when retirement comes during that second marriage.

What the Uniformed Services Former Spouses' Protection Act Actually Does

The Uniformed Services Former Spouses' Protection Act, or USFSPA, is the federal law at 10 U.S.C. § 1408 that allows state courts to treat military retired pay as property that can be divided in a divorce, and allows the government to pay a former spouse directly under a qualifying court order. It does not give anyone a share on its own. A former spouse's share comes from a state court order dividing the retired pay under the governing state law.

"Retired pay" here means the monthly payment a service member receives after qualifying for military retirement. It is not VA disability compensation, Concurrent Retirement and Disability Pay (CRDP) or Combat-Related Special Compensation (CRSC). VA disability compensation is a separate federal benefit paid to the veteran for a service-connected disability; it is not part of retired pay and is never the same thing as the retired pay being divided. CRDP and CRSC are also separate payments with their own rules. Lumping all of these together as one "military pension" is where much of the confusion in second-marriage cases begins.

The agency that pays retired pay, and that carries out court orders dividing it, is the Defense Finance and Accounting Service, or DFAS. According to the DFAS legal overview of the USFSPA, an award of a percentage of a member's retired pay is automatically construed as a percentage of disposable retired pay, and a Qualified Domestic Relations Order is not required to divide retired pay as long as the former spouse's award is set forth in the court order.

California supplies the property rule that a court applies. Family Code section 760 provides:

"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."

Because each marriage has its own dates, each marriage has its own community interest. A first divorce order does not quietly reduce what a current spouse may later receive; it governs only what it awards. The broader framework is covered in the site's overview of military retirement division.

How a Prior Divorce Order Affects Military Retired Pay

A divorce judgment that awards a former spouse part of retired pay reaches only what it expressly covers, which in California is ordinarily the community portion accrued during that first marriage. It does not reach years of service that came after the first marriage ended.

When a first judgment is silent about retired pay, the former spouse has no automatic entitlement to it through federal law. Whether a court can still divide an asset that was left out of a judgment is a separate question; the site addresses it in its page on ex-spouse claims years later.

When the first judgment did award a share, that share is fixed by the order's terms. The service member's remarriage does not erase it. The DFAS maximum payment page states that the right to payments under the USFSPA terminates upon the death of the member or former spouse, unless the court order provides that the payments end earlier. In other words, the order's own language matters a great deal.

The share is measured against "disposable retired pay." DFAS describes this as gross retired pay less authorized deductions, and the deductions that apply depend on the effective date of the divorce. Among the deductions DFAS lists for divorces on or after February 3, 1991 are certain disability-based retired pay and Survivor Benefit Plan premiums paid for a spouse or former spouse who is receiving part of the retired pay under a court order. DFAS also notes that a change in a member's authorized deductions changes what a former spouse receives on a percentage award.

How VA disability compensation, described above as separate from retired pay, interacts with a division order raises its own questions.

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

The 10/10 rule decides one thing: whether DFAS can pay a former spouse's court-ordered share directly to that former spouse. It does not decide whether retired pay can be divided at all.

The DFAS how-to-apply page states that a court order should contain enough information for DFAS to decide whether the Servicemembers Civil Relief Act and the USFSPA's jurisdictional and 10/10 requirements, if applicable, have been met. A former spouse requests direct payment with DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay, served with a copy of the court order certified by the clerk of court.

When the 10/10 threshold is not met, a state court can still divide the retired pay. The difference is routing: instead of DFAS sending the former spouse's share, the order generally directs the service member to pay it.

For a second spouse, this matters less than people assume. The 10/10 rule neither creates nor destroys a current spouse's rights. It concerns only how a prior order gets paid.

The Survivor Benefit Plan: One Annuity, Competing Claims

Here is where a remarried family most often feels the weight of an earlier divorce. The Survivor Benefit Plan, or SBP, is a federal program set out at 10 U.S.C. §§ 1447–1455 that pays a monthly annuity to a beneficiary after a covered member'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 under the statute) to beneficiaries in a set order, starting with "the eligible surviving spouse or the eligible former spouse."

That wording reflects the practical problem: the spouse-or-former-spouse slot holds one person. A former spouse election and a current spouse election do not run side by side.

A divorce court may order a service member to elect former spouse coverage. The DFAS deemed election page explains that when such an order exists, the former spouse can submit his or her own request, called a "deemed election," within one year of the order requiring the coverage, and that a proper, timely request puts the coverage on the member's account even if the member never made the election.

Once former spouse coverage is in place, a current spouse is generally not covered unless that coverage ends. Under 10 U.S.C. § 1450(b)(2), a former spouse annuity is paid while the former spouse is living or, if the former spouse remarries before age 55, until that remarriage; under § 1450(b)(3), payment resumes if that later marriage ends by death, annulment or divorce. Federal law also provides limited windows for a member to change elections after events such as remarriage, and the details depend on the circumstances.

The amount of the annuity is tied to a "base amount," and 10 U.S.C. § 1447(6) defines that term differently depending on the kind of annuity: one definition for a standard annuity when a person dies after becoming entitled to retired pay, and another for a reserve-component annuity when a person dies before age 60. More on coverage choices appears in the site's page on the Survivor Benefit Plan.

How California Community Property Rules Apply to a Second Marriage

Retired pay earned during the second marriage, while the couple is domiciled in California, is community property of that second marriage under Family Code section 760. It is a distinct asset from the portion the first marriage earned.

California courts usually measure a community interest in retired pay with a time-based comparison, often called the "time rule": service during the marriage measured against total service. A first judgment that divided the first marriage's share does not consume the whole retired pay. Service years that fall inside the second marriage form the second marriage's community interest.

If the second marriage ends, that dissolution addresses the second marriage's share. Family Code section 2550 provides that, except by written agreement, oral stipulation in open court, or as otherwise provided, the court divides the community estate equally. Under Family Code section 2552, the court values assets and liabilities as near as practicable to the time of trial, and on 30 days' notice may, for good cause, use a date after separation and before trial.

The ordinary disclosure rules apply too. Under Family Code section 2104(f), the petitioner serves the preliminary declaration of disclosure with the petition or within 60 days of filing it, and the respondent serves it with the response or within 60 days of filing it, unless the parties extend those times by written agreement or the court extends them by order. In San Diego County, these cases are heard by the Superior Court of California, County of San Diego.

TRICARE and Other Benefits: What a Current Spouse Receives

TRICARE is the federal health care program for uniformed service members, retirees and their families. A current spouse of an active-duty or retired service member is generally eligible as a dependent.

A former spouse's TRICARE eligibility is a separate matter, governed by its own federal requirements tied to the length of the marriage and its overlap with military service. A current spouse's eligibility does not depend on what the first divorce awarded, and the two do not compete the way SBP coverage can. Health coverage is also distinct from VA disability compensation, discussed in the USFSPA section above. The site's page on military spouse benefits after divorce covers former spouse benefits more broadly.

What Changes When the Service Member Retires During the Second Marriage

Retirement after remarriage is the scenario that pulls every thread at once, and it is often when a current spouse first sees the earlier order. Retired pay that begins at retirement reflects the whole career, but the first order covers only what it awarded. The share earned during the second marriage remains a community asset of the second marriage.

When a first order became final before retirement, DFAS explains that for divorces entered after December 23, 2016, disposable pay for that order is limited to the basic pay for the member's grade and years of service at the time of the order, increased by retiree cost-of-living amounts until retirement. That is the subject of the site's page on the frozen benefit rule.

If a second divorce later produces a second division order, 10 U.S.C. § 1408(e) sets the limits. Under § 1408(e)(1), the total payable under all such orders may not exceed 50 percent of disposable retired pay, and under § 1408(e)(2), multiple orders are satisfied "on a first-come, first-served basis" out of what remains after earlier-served orders. Section 1408(e)(3) separately addresses conflicting orders directing different amounts to the same spouse or former spouse. Drafting a retired pay order that works under these limits is explained in the site's guide to a military retirement order.

The SBP decision at retirement is a turning point. Under 10 U.S.C. § 1455(b), regulations must provide that before a member becomes entitled to retired pay, a married member and spouse are informed of the available elections and their effects, and a former spouse is informed when the statute requires notice. An election made then can control survivor coverage for years.

Two other payments sometimes appear at retirement. CRDP is a payment for certain retirees who also receive VA disability compensation; CRSC is a separate payment for certain retirees with combat-related disabilities. They are distinct from retired pay and from each other, each with its own eligibility rules, and they are not treated the same way.

If You'd Like to Talk Through a Two-Marriage Situation

A second marriage turns a single retired pay question into several: what the first order says, whether it reached SBP, how the second marriage's share is measured, and what happens at retirement. A consultation can cover the orders already in place, the marriage and service dates, and which federal and California rules apply to a two-marriage situation like this. Military Family Law Advocates practices California family law only, so questions about benefits outside a divorce or family-law matter belong elsewhere.

To talk with the firm about a two-marriage military retirement situation, call Military Family Law Advocates at 888-771-0460 for a confidential consultation.