Certain requirements and rules differentiate military divorce from civilian divorce. Federal laws under the Uniformed Services Former Spouses’ Protection Act (USFSPA) authorize states to divide military pension assets in a divorce.
The law does not entitle a spouse to a share of the military pension. A former spouse must be awarded the military retiree’s pay in a state court order.
The 10/10 rule in a military divorce impacts pension benefits. The rule centers on the length of the marriage and how long a spouse served in the military.
If the marriage lasted at least 10 years and the service member (or former service member) served at least 10 years in the military during the marriage, then the former spouse may receive benefits paid directly from the Defense Finance and Accounting Service (DFAS).
DFAS can honor only orders issued by courts of competent jurisdiction as defined in the USFSPA:
- Any U.S. State
- District of Columbia
- Puerto Rico
- American Samoa
- Virgin Islands
- Northern Mariana Islands
- Trust Territory of the Pacific Islands
No foreign court orders qualify for direct payments under USFSPA.
Military Pensions Are Community Property
Any military pension accumulated during the marriage is community property. Spouses in unions that do not meet the 10/10 threshold can still receive a share of the pension in their divorce settlement. Instead of DFAS providing direct payment to them, the spouse will rely on their ex to make payments to them.
Military pensions can be made to a former spouse in a lump sum or as a fixed percentage.
Past-due retired pay cannot be collected under the USFSPA. The 10/10 requirement does not apply to the enforcement of alimony or child support.
Some Former Spouses Maintain Commissary Privileges
The length of the marriage and military service also determines whether a former spouse maintains certain privileges.
A former spouse who meets the 20/20/20 rule will retain full commissary, exchange, and Tricare health benefits. To qualify, the military member must have served at least 20 years, the marriage lasted a minimum of 20 years, and that period of marriage must have overlapped the service period by 20 years or more.
Former spouses who do not qualify for 20/20/20 will lose access to all commissary and exchange privileges when the divorce is final. If the period of the marriage only overlapped the period of service by 15 years, the former spouse can continue to receive Tricare for one year after the divorce.
Unique Issues Shape Military Divorce
A divorce involving a current or former military service member has rules and regulations that do not apply to civilian divorce. Military divorces do, however, have to resolve many of the same issues: child custody, child support, spousal support, and property division.
Having an attorney who understands how military service shapes these issues is important. For example, the possibility of out-of-state or foreign deployments must be considered in custody arrangements and parenting plans. California’s Family Code offers custody protections for a parent who is deployed.
Skilled Legal Representation for Military Divorces
State, federal, and military-specific laws and rules provide the framework for the dissolution of a marriage where one or both spouses are current or former military members. At Palmer Rodak & Associates, we have substantial experience in representing clients needing a California military divorce.
Discuss your military divorce with us in a confidential consultation. Contact us online or call (760) 573-2223 to schedule.