How is Military Pension Divided In a Divorce?
In California, pensions that were earned during the marriage are considered community property, and can be divided between the parties in a divorce. This rule generally applies to military pension, but there are some special rules that pertain to them.
First, in order for the court to divide the pension, the state court’s jurisdiction, or the power to make orders regarding the military pension, must be established.
The Uniform Services Former Spouses’ Protection Act (USFSPA), passed in 1981, authorizes (but does not require) State courts to divide military retired pay as a community property asset. In California, a court may decline to divide a military pension because of lack of “personal jurisdiction” over the military member.
A 1991 California case, In re Marriage of Tucker (226 Cal.App.3d 1249), held that a state may not exercise the power to divide a military pension unless the state has jurisdiction over the military member by reason of “(A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.”
In practice, if the California court has jurisdiction over other issues in the case, such as child custody, it may be simpler to consent to California jurisdiction over the pension in order to have all issues in the divorce settled by the same court.
Once jurisdiction is established, the court can divide the pension. It first determines how much of the military pension is community property by using a formula. The court will divide the months of marriage that overlap with military service by the total number of months of military service to find the percentage of the total pension that is community property. Generally, each spouse is entitled to half of that community property portion. For example, if the servicemember has 20 years of service that counts toward retirement, and the parties were married for 8 of those years, the community property portion is 40%. Each spouse is entitled to half of that portion, so the spouse would be entitled to 20% of the total pension.
There is specific language that must be in an order to divide a pension. It is best to consult with a California family law attorney to ensure that the pension is divided correctly and the proper orders are made and sent to Defense Finance and Accounting Service (DFAS) so that they can divide the pension.
There is a common misconception that a military pension can only be divided if the parties have been married for 10 years. This is not true; technically a pension can be divided even if there is only one day of overlapping marriage and service. The “10-year-rule” is that once there are 10 years of overlapping service, DFAS will pay the divorced spouse his or her share directly. For a shorter marriage, the military member spouse pays the other spouse themselves.
In many military marriages, the military pension is one of the biggest community assets. To be sure that the pension is divided fairly and correctly, contact a knowledgeable California family law attorney.
If you have questions, please Contact Us for a free 30 minute consultation at 619-398-3468. We would be happy to help you.
Written by Jeanne Murray
Attorney Jeffrey P. Mach, Jr. is a Certified Family Law Specialist in the state of California. Mr. Mach is not a specialist in any other state.
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