Military Separation Agreement in California: What It Covers and How It Works

A military separation agreement is a written contract, usually called a marital settlement agreement, that a service member and spouse sign to settle a California divorce or legal separation. It divides property, including military retired pay, sets custody and support, and addresses federal benefits such as the Survivor Benefit Plan. A court judgment makes it enforceable.

Most people facing this document are holding a draft they did not write, or are about to sit down and negotiate one, while also managing a household around a service member's schedule in San Diego County. One spouse may be weeks from a deployment or a move to a new duty station. The other may be wondering whether years of following the service around California and beyond count for anything when the marriage ends. The words in the agreement decide much of that, and military terms make the draft hard to read.

This article walks through what the agreement is, how federal and California law share the work, and which military-specific pieces tend to cause trouble when they are left out or written loosely.

What a Military Separation Agreement Is Under California Law

A military separation agreement, in family law, is a marital settlement agreement (often shortened to MSA): a signed contract resolving property, support and custody between spouses when one or both serve in the military. "Separation" here means the spouses separating. It has nothing to do with an administrative separation from service, such as a discharge or release from active duty, which is a different subject this article does not cover.

Two bodies of law govern the agreement at once. The California Family Code governs whether the agreement is enforceable as a contract and how the court treats it. Federal law governs what the agreement can actually do with military benefits. The main federal pieces are:

• The Uniformed Services Former Spouses' Protection Act (USFSPA), the federal law that lets state courts treat military retired pay as property and lets the government pay a former spouse under a court order (10 U.S.C. § 1408).
• The Servicemembers Civil Relief Act (SCRA), which protects service members in civil cases, including divorce and custody cases.
• The Survivor Benefit Plan (SBP), the military program that pays a monthly annuity to a beneficiary after a retiree dies.

Retired pay is the monthly pay a member receives after retiring from the service. The Defense Finance and Accounting Service (DFAS) is the federal agency that pays it, and it is the agency that receives a court order dividing it. A PCS, or permanent change of station, is a military order moving a member to a new duty location, often with the family.

An agreement signed at a kitchen table is not yet a court order. It is typically incorporated into a judgment of dissolution or legal separation. In San Diego County, that judgment comes from the Superior Court of California, County of San Diego. Without the judgment, the agreement remains a private contract, and DFAS works from court orders.

Dividing Military Retired Pay: The USFSPA and California Community Property

The USFSPA does not hand a former spouse any share of retired pay. It permits a state court to divide retired pay as property; the former spouse's share comes from a California court order dividing it under California law. The federal definition of a "court order" includes a final decree of divorce, dissolution, annulment or legal separation, or a court-ordered, ratified or approved property settlement incident to such a decree (10 U.S.C. § 1408(a)(2)). A signed agreement that a court approves fits that description once it becomes part of the judgment.

California law then decides the share. Under Family Code section 760, generally all property acquired by a married person during the marriage while domiciled in California is community property. The court must divide the community estate equally unless the parties agree otherwise in writing or by oral stipulation in open court (Family Code section 2550). For retired pay, the community share is generally the part earned during the marriage, and how that part is measured depends on the facts and the court's approach. The site's guide to military retirement division covers the formulas in more depth, and service earned while the couple was domiciled elsewhere raises the separate question of retirement earned outside California.

DFAS guidance adds two points that shape the wording. An award stated as a percentage of retired pay is automatically read as a percentage of disposable retired pay, and a Qualified Domestic Relations Order is not required, so long as the award is set out in the court order (DFAS, Former Spouses' Protection Act: Legal Overview).

To ask DFAS to pay, a former spouse submits DD Form 2293, the DFAS Application for Former Spouse Payments from Retired Pay, with a copy of the court order certified by the clerk of court (DFAS, How to Apply).

One more distinction runs through every military agreement. 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," and an agreement that lumps them together invites confusion later.

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

The 10/10 rule is a payment rule, not a division rule. It decides only whether DFAS can send the former spouse's share of retired pay directly. It turns on how long the marriage overlapped the member's creditable military service, and DFAS lists it among the requirements a court order must let it check: the order should contain enough information to determine whether the SCRA, the USFSPA's jurisdictional requirements and the 10/10 requirements, if applicable, have been met (DFAS, How to Apply).

A shorter overlap does not stop a California court from dividing retired pay. The court can divide it regardless of how long the marriage and the service overlapped. When the 10/10 threshold is met, DFAS can pay the former spouse directly. When it is not met, the member is responsible for paying the former spouse's share out of the retired pay the member receives.

Either way, the agreement has to state the division clearly enough for DFAS to calculate it. Agreements usually take one of two forms:

• A fixed dollar amount, a set sum each month. It is simple to read but does not move with later pay changes unless the order says so.
• A percentage or formula, a share tied to retired pay. DFAS treats a percentage as a percentage of disposable retired pay, and for a divorce while the member is still serving, DFAS says the award may be expressed as an acceptable formula or a hypothetical retired pay award (DFAS, Legal Overview).

Timing matters too. For a division that becomes final before the member begins receiving retired pay, federal law limits the divisible amount to the retired pay the member would have received using the member's retired pay base and years of service on the date of the decree, increased by retiree cost-of-living adjustments. DFAS says orders entered after December 23, 2016 in those cases must supply the variables it needs to make that calculation (DFAS, NDAA-'17 Court Order Requirements). Missing variables are a common reason a military retirement order comes back.

The Survivor Benefit Plan: Elections the Agreement Must Address

Retired pay stops when the retiree dies, so a former spouse's share stops with it. The SBP is what can continue a monthly annuity to a beneficiary after that point, and a former spouse can be that beneficiary. An SBP annuity is paid effective as of the first day after the member's death (10 U.S.C. § 1450(a)).

California law reaches survivor benefits directly. Family Code section 2610 directs the court to make whatever orders are necessary or appropriate to ensure each party receives the full community property share in any retirement plan, "including all survivor and death benefits." A military agreement therefore typically states whether the member must elect former-spouse SBP coverage and how the cost of that coverage is shared.

Once made under a court order or written agreement incident to a divorce, a former-spouse election is hard to undo: federal law bars changing it unless specific statutory requirements are satisfied (10 U.S.C. § 1450(f)(2)).

The deadlines are short. If the member has been court-ordered to elect former-spouse coverage, DFAS says the former spouse can submit a "deemed election" request on their own, but it must be submitted within one year of the order requiring the coverage (DFAS, Former Spouse SBP Deemed Election). A former spouse who misses that window, or whose agreement never required coverage, may lose the ability to be named. This is one of the most consequential omissions in a military agreement.

The annuity amount is figured from a "base amount," and federal law defines that term differently depending on the kind of annuity, such as a standard annuity or a reserve-component annuity (10 U.S.C. § 1447(6)). The agreement's SBP terms are only as clear as the kind of coverage they name.

SCRA Protections and How They Affect California Divorce Proceedings

For a member who is deployed, at sea or in training while the divorce moves forward, the SCRA offers two separate protections, each in its own section.

Default judgments (50 U.S.C. § 3931). This section applies to any civil action, including a child custody proceeding, in which the defendant does not appear. Before entering judgment, the court must require an affidavit stating whether the defendant is in military service, or that the filing party 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.

Stays of proceedings (50 U.S.C. § 3932). This section covers a servicemember who is in military service, or within 90 days after release from it, and has received notice of the case. On the servicemember's application, the court must stay the case for not less than 90 days if the application includes a statement of how current duty materially affects the ability to appear and when the member will be available, and a letter 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 and does not waive defenses. Additional stays may be requested based on the continuing effect of duty.

A stay is not automatic, and it delays rather than ends a case. The divorce can ultimately proceed, and the agreement can still be finalized once the member is able to take part.

California's own clock runs separately. Under Family Code section 2339, a dissolution judgment cannot end the marriage until six months have passed from the date of service 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.

Child Custody and Visitation When a Parent Is Deployed

If you are in immediate danger, call 911.

Custody is often the part of the agreement parents worry about most, because military orders can change a child's routine with little warning. California courts decide custody and visitation under the best interest of the child. Under Family Code section 3011, the court considers factors including the child's health, safety and welfare; any history of abuse; the nature and amount of contact with both parents; 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. The site's overview of military child custody explains these factors in more detail.

Several other rules shape what a parenting agreement can say:

• Visitation. 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)).
• Frequent and continuing contact. In 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 (Family Code section 3040(a)(1)).
• Domestic violence. A finding that a parent perpetrated domestic violence within the previous five years creates a rebuttable presumption that awarding that parent custody is detrimental to the child (Family Code section 3044(a)). 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 (section 3044(b)(1)).
• Emergency orders. The court generally will not grant or change custody on an ex parte basis unless there is a showing of immediate harm to the child or immediate risk of removal from California (Family Code section 3064(a)). 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 (section 3064(b)).

Deployment has its own rule. When a parent with custody or visitation receives temporary duty, deployment or mobilization orders that require a substantial move or materially affect that parent's time with the child, any needed change is a temporary order made without prejudice, subject to review when the parent returns (Family Code section 3047(b)(1)). On the relocating parent's motion, the court may grant reasonable visitation to a stepparent, grandparent or other family member during the absence only if it makes the findings section 3047(b)(3)(B) lists. That visitation is never automatic. Military parenting plans often build these possibilities in.

PCS orders raise relocation again and again. If the court does not consider it inappropriate, a custody order may require a parent to notify the other 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).

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 Family Court Services. Except as provided in section 3188, the mediator may, consistent with local court rules, submit a recommendation on custody or visitation if the mediator has first provided it in writing to the parties and their attorneys, including counsel for any minor children, before the hearing (Family Code section 3183(a)). The judge decides.

Property Division, Disclosure Obligations, and the Separation Agreement

Disclosure comes before agreement. 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)). The parties may mutually waive the final declaration, but the waiver must be executed under penalty of perjury in open court or by separate stipulation (section 2105(d)).

For a military family in San Diego County, disclosure usually reaches well past the retired pay itself: the Thrift Savings Plan (TSP), the federal retirement savings account for service members; bank accounts; vehicles; and any home, wherever it sits.

Valuation follows its own clock. 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 to accomplish an equal division (Family Code section 2552).

Separate money mixed into community property has its own rule. Under Family Code section 2640, a spouse who used separate property for down payments, improvements or loan principal on community property is generally reimbursed, unless that spouse made a written waiver of the right to reimbursement or signed a writing that has that effect. The opposite situation, community money paying down a loan on one spouse's separate-property home, is handled by the Moore/Marsden apportionment, a different rule.

Military allowances, such as the Basic Allowance for Housing (BAH) and the Basic Allowance for Subsistence (BAS), are pay for housing and food during service. They are not retired pay, and how they figure in support is a question of California support law rather than property division.

What a Complete Military Separation Agreement Should Address

The drafts that cause the most trouble are usually the ones that look finished but leave something unsaid. A complete agreement in a California military case generally resolves:

• Retired pay division, stated as a formula or fixed amount, with the information DFAS needs to calculate it and to check the 10/10 rule.
• SBP, including whether former-spouse coverage is required and who bears its cost.
• VA disability compensation, addressed as a payment distinct from retired pay.
• CRDP and CRSC, each addressed separately from retired pay and from each other.
• TRICARE, the military health program. A former spouse's continued eligibility depends on federal rules tied to the length of the marriage, the length of service and how much they overlapped.
• Custody and visitation, including a deployment clause and terms that anticipate PCS moves.
• Child support and spousal support. Parents may stipulate to child support, but the court will not approve an amount below the guideline formula unless the parties make the declarations Family Code section 4065(a) requires, including that they are fully informed of their rights, the order is agreed to without coercion or duress, the agreement is in the children's best interests, and the children's needs will be adequately met.
• Other community property, such as bank accounts, real property and the TSP.
• Disclosure compliance, with the preliminary and final declarations served, or the final declaration properly waived.

Omitting any of these, particularly SBP and the deployment custody clause, can create problems that are hard to correct after the judgment is entered. The site explains how a former spouse's benefits after divorce depend on these terms, and what happens when enforcing military retirement division runs into a rejected order.

If You'd Like to Talk Through Your Agreement

A military separation agreement asks two legal systems to agree on one page, and the gaps usually sit where they meet: a retired pay clause DFAS cannot calculate, an SBP term with no clear election, or a custody plan that never considered the next PCS. A consultation is an opportunity to learn how retired pay division, survivor benefit elections and deployment-related custody issues generally work, and whether the firm may be a good fit. The firm practices California family law only; matters governed by other states' courts fall outside its scope.

To discuss California military family law questions in a confidential consultation, call Military Family Law Advocates at 888-771-0460.