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What You Need to Know About Military Pensions and Divorce in California
One of the most important, and most complicated, parts of divorce is the property division process. While California’s community property rules simplify this somewhat, it can still be challenging for petitioners to understand, especially when it comes to complex assets, such as a military pension. The Uniformed Services Former Spouses’ Protection Act outlines how military retirement benefits, including a pension, are handled during a military divorce, but California state laws also factor in.
Understanding How Military Pensions Are Calculated
Before any marital asset can be divided, it first has to be valued. Military pensions are calculated using a formula that considers the service member’s base pay and the number of years of service. In general, the longer the person served, the more valuable the pension. Several potential retirement plans are available to service members, depending on when they entered the military and what they opted into. Calculating a military pension is a complex task, but it’s often made even more difficult because the value increases over time. This makes it challenging to determine an accurate figure for the pension at the time of divorce, which could be years before the service member starts receiving the money.
Military Pensions and Property Division Laws in California
It’s a common misconception that the Uniformed Services Former Spouses’ Protection Act decides exactly how a military pension is handled during property division. In reality, the Act only specifies that a military pension can be subject to property division, but it’s the state laws that determine what that means.
California is one of only a handful of states operating with a community property system. In general, this means that any property acquired during the marriage, including the portion of the military pension earned during that time, is considered community property and subject to a 50/50 split between the spouses. However, this doesn’t mean the retirement would be split equally. Only the portion earned during the marriage would qualify as community property. The longer the service member served before or after the marriage, the more they would retain as separate property.
What Is the 10/10 Rule?
You may have heard of the 10/10 rule, as it refers to military retirement benefits, but it’s one of the most commonly misunderstood guidelines. For example, many people believe that they have to be married for at least 10 years to be able to receive part of their ex’s pension, but this isn’t the case. The 10/10 rule doesn’t determine whether a spouse is entitled to any part of the pension. It only applies to whether the spouse is able to get direct payments from the Defense Finance and Accounting Service (DFAS) or whether they must get paid from the service member.
The 10/10 rule states that the parties must have been married for at least 10 years and have at least 10 years of the marriage overlapping with the years of service for the spouse to qualify for direct payments through DFAS. Qualifying for direct payments can make it much easier to receive your portion of the benefits, especially for those who are not on good terms post-divorce.
Why Military Divorces Are More Complicated
Military pensions are just one of the unique factors that can make military divorces more complicated. Military divorce proceedings must consider both state and federal laws, and there can be further complications depending on how long the couple has resided in the state or if the service member is currently deployed or otherwise overseas. It’s imperative that both service members and spouses work with experienced military divorce attorneys who can explain how these laws apply to their situation and help them navigate potential complications, such as child custody and visitation or ongoing TRICARE eligibility.
Military divorces also depend heavily on ensuring that every aspect of the proceedings is done correctly and in a way that is legally enforceable. For example, if the divorce decree doesn’t explicitly address the division of a military pension, it could make it difficult or impossible for the spouse to actually receive those benefits.
Legal Representation Matters in Military Divorces
When you’re going through a military divorce, it’s crucial to have experienced legal support from the beginning. Even if both parties are willing to collaborate, there are still legal requirements that must be considered and that can have a significant impact on how assets like military pensions are divided.
When you work with a military divorce attorney who understands both California family law and the federal guidelines for military benefits, you get the peace of mind that you’re getting what you’re entitled to and that someone is looking out for your interests every step of the way. An attorney can help you understand your options, ensure everything is handled and filed in accordance with the law, and help you navigate any challenges that arise.
A military pension is a valuable asset, and it’s one of many factors that have to be considered in a divorce. If you have questions about what could happen to your military pension or how to navigate the military divorce process, reach out to our firm. The team at Khosroabadi & Hill, APC, has extensive experience helping service members and civilian spouses navigate this process, and we’re well-versed in both the applicable state and federal laws. Call (858) 240-2093 to schedule a free consultation and learn more about how our attorneys can help.
