Division of Pensions from Military Service in California Divorce
If a spouse has a military pension and is considering divorce, the pension can be divided following separation. Here’s what you need to know about dividing a military pension in a California divorce.
As California is a community property state, military pensions are subject to division in a divorce even if there is minimal overlap between the time of marriage and time of military service. However, this does not mean that the military pension MUST be divided between the spouses; it has to be included in the final divorce order. This area of law can be quite complicated, contact Her Lawyer to be in touch with a lawyer experienced in military divorce.
What are military pensions and how are they allocated in a divorce in California?
Military pensions are retirement benefits that members of the military receive if they have completed twenty years of active duty service. This pension is usually a substantial asset for military families. As such, in the case of divorce, it is critical to consider whether and how the pension will be allocated among the divorcing partners.
Related: How to Calculate Pension Value in a California Divorce
Under the Uniformed Services Former Spouse Protection Act (USFSPA), if a state has jurisdiction over the case, then the state court has the power to apportion the military pension between the divorcing partners. The USFSPA gives state courts the authority to determine how to divide these pensions based on respective state laws. California is a community property state, which means that the community property portion of the pension must be divided equally; this is the amount of pension that is attributable to the overlap of time between marriage and military service. This does not mean that the other portion of the pension will not be divided as well; the final amount must be determined and included in the final court order.
If there is a ten-year overlap between the military service and the marriage, then the non-military spouse is entitled to a portion of the pension, which is paid through the Defense Finance Accounting Service (DFAS). If the overlap is less than ten years, the spouse may still be entitled to a portion of the pension but will have to be paid directly from the military spouse.
There are numerous considerations that must be taken into account before the final apportionment is determined by the state court. Finding the right lawyer is essential in ensuring that you get the amount that you are entitled to. Contact us to talk with a lawyer who specializes in this area.
Related: Military Divorce in California: Rights, Process, and Benefits
The Role of Jurisdiction in Military Pension Division
Due to the fact that military service members may be stationed in other states while deeming California as their legal residence, the military spouse can potentially object to a California state court having jurisdiction over the divorce. A military service member might want to object to California state courts’ jurisdiction so that the military service member has access to more favorable pension-division divorce laws in other states. However, the court will closely scrutinize actions such as this to ensure that the non-military spouse receives that to which they are entitled.
The Frozen Benefit Rule
In 2016, Congress added an amendment to the USFSPA known as “the frozen benefit rule.” Due to this rule, the base pay and rank (benefits) for the pension are frozen at the time of divorce. This means that if a military divorce occurs and the military spouse rises in rank post-divorce, the other spouse is not entitled to an increase in pension payment. In other words, it is as if the military spouse retired the day that the divorce occurred. As such, this only applies to couples that divorce while the military spouse is still on active duty.
FAQs about Dividing Military Pension in California Divorce
Does the length of marriage matter when considering the division of the pension?
As long as there is overlap between the length of the marriage and the length of military service, the military pension is able to be divided among the partners. In California, if there is a ten-year or greater overlap, then the non-military spouse may be entitled to half of the pension. If the overlap is less than ten years, then the spouse may still be able to get half of the pension. However, the non-military spouse may not be entitled to it. There are numerous considerations to take into account before the final number is determined.
Does the frozen benefit rule apply to me?
The frozen benefit rule applies to you if the divorce occurred while the military spouse was on active duty. In this case, the pension apportionment would be considered as if the military spouse had retired on the day of divorce.
What should I do to make sure that I get what I am entitled to in my divorce?
Contact us to get in touch with a lawyer who specializes in this field. This area of law can become very complicated, so it is always recommended to talk with a lawyer when dealing with the division of pensions in a divorce.
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If you or a loved one have any more questions about dividing a military pension in a divorce, contact us. Get your free consultation with one of our Property Division Attorneys in California today!