Military retirement can be one of the most valuable assets in a divorce. In California, the portion earned during marriage may be divided as community property.
The calculation depends on the service member’s retirement system, dates of marriage, dates of service, and the language in the divorce order. Federal rules also affect how payments are processed.
Is Military Retirement Divided in Divorce?
Military retirement may be divided in divorce under the Uniformed Services Former Spouses’ Protection Act. This federal law allows state courts to treat disposable military retired pay as marital or community property.
California courts generally divide community property equally. Under California Family Code Section 2550, the court usually divides the community estate equally unless the parties reach another agreement.
Military retirement earned before marriage usually remains separate property. Retirement earned during marriage is often community property. Retirement earned after separation may also be separate property.
Her Lawyer’s guide to community vs. separate property in California explains this distinction in more detail.
The Basic Military Retirement Divorce Formula
Courts often use a time rule formula to calculate the marital portion of military retirement. The formula compares the months of military service during the marriage to the total months of military service.
A common formula is:
Marital portion = months of service during marriage ÷ total months of service
The former spouse’s share is then applied to that marital portion. In California, the former spouse may receive one-half of the community portion unless the court orders another division.
For example, a service member served 240 total months. The marriage overlapped with 120 months of service. The marital portion would be 50%.
If the former spouse receives half of the marital portion, the former spouse’s share would be 25% of the divisible retired pay.
Why the Divorce Date Matters
The date of divorce can affect the calculation. Federal law changed how courts handle military retirement orders entered before the service member retires.
For many divorces finalized after December 23, 2016, DFAS applies a “frozen benefit” approach. This often limits the former spouse’s share to the service member’s rank and years of service at the time of divorce, with later cost-of-living adjustments.
DFAS explains this issue in its military retired pay division guidance. A divorce order should use clear language that DFAS can process.
This is one reason military retirement orders require careful drafting. A vague order may delay payments or lead to rejection.
What Is the 10/10 Rule?
The 10/10 rule is often misunderstood. It does not decide whether a former spouse has a right to part of the military retirement.
Instead, the 10/10 rule controls whether DFAS can make direct payments to the former spouse. DFAS generally requires at least 10 years of marriage overlapping with at least 10 years of creditable military service.
DFAS explains the direct payment rule in its USFSPA FAQs. If the 10/10 rule is not met, a court may still divide retirement. The service member may simply need to pay the former spouse directly.
What Counts as Disposable Retired Pay?
The divorce order usually applies to disposable retired pay. This is not always the same as the full retirement amount.
Certain deductions may reduce disposable retired pay. Federal law excludes some amounts, including certain disability-related deductions.
VA disability compensation is not divided as military retired pay. A service member who waives retired pay to receive VA disability benefits may reduce the amount available for division.
This issue can significantly affect a former spouse’s expected payment. The divorce judgment should address military retirement, disability issues, and survivor benefits as clearly as possible.
Survivor Benefit Plan Issues
Military retirement payments usually stop when the retired service member dies. A former spouse who depends on those payments may need Survivor Benefit Plan protection.
The Survivor Benefit Plan can provide continuing income to an eligible beneficiary after the retiree’s death. A divorce judgment should clearly state whether former spouse coverage is required.
Deadlines may apply after divorce. Missing a Survivor Benefit Plan election deadline can cause serious financial consequences.
How to Divide Military Retirement in a California Divorce
Military retirement division usually requires detailed financial disclosures. California spouses must exchange information about assets, debts, income, and expenses. Her Lawyer’s article on financial disclosures in California divorces explains this process.
A divorce order should identify the military retirement benefit and state the former spouse’s share clearly. It should also address whether payments will come directly from DFAS.
The order may need to include:
- The service member’s identifying information
- The marriage and separation dates
- The service dates used in the calculation
- The percentage or formula awarded
- Survivor Benefit Plan terms
- Cost-of-living adjustment terms
- Required DFAS payment language
Military retirement is not divided with an ordinary private-sector QDRO. It usually requires a military retired pay division order that complies with DFAS rules.
Can Military Retirement Affect Spousal Support?
Yes. Military retirement may affect both property division and support. A court may divide the community portion of retirement as property and also consider income when evaluating support.
The same dollars should not be treated carelessly. A court must distinguish between the property award and the income available for support.
California support issues depend on the facts. Income, need, earning capacity, health, and the length of the marriage may all matter.
FAQs About Calculating Military Retirement in Divorce
Does a former spouse automatically get half of military retirement?
No. A former spouse does not automatically receive half of the entire retirement. The court usually looks at the portion earned during marriage.
Does the 10/10 rule create a right to military retirement?
No. The 10/10 rule only affects direct payment from DFAS. It does not create or eliminate the right to a court-ordered share.
Can military retirement be divided before the service member retires?
Yes. A divorce court can award a share before retirement. Payment usually begins when the service member starts receiving retired pay.
Does VA disability count as divisible military retirement?
No. VA disability compensation is generally not divided as military retired pay. It may still affect the financial issues in the divorce.
Legal Help With Military Retirement Division
Military retirement division requires more than a simple percentage. Dates of service, federal payment rules, disability issues, and survivor benefits can all change the result.
Her Lawyer’s California divorce attorneys can help review retirement records and property division issues. Contact Her Lawyer to discuss military retirement in a California divorce.