UNDERSTANDING THE DIVISION OF MILITARY PENSIONS AND BENEFITS DURING A DIVORCE

Military divorces can be quite complex since they not only need to follow the civil code, but also abide by many federal laws and military regulations. Besides child custody, child support, spousal support and property asset division, military pensions and benefits also need to be addressed. The first step to a military divorce procedure is for a state court to obtain jurisdiction over the case, especially if the service member is deployed out of state or out of the country at the time of separation. In 1982 Congress passed the Uniformed Services Former Spouses’ Protection Act (USFSPA) to allow state courts to obtain jurisdiction and handle all military divorce matters. Only a court located in the state where military personnel has established legal residence is authorized to do so, or in a different state if the service member has given his consent. In case the service member doesn’t give consent or it is difficult to establish a specific state of legal residence, the divorcing spouse can also file a petition in the service member's home state and ask that state to handle the divorce.

Under California law, a service member’s military pension is considered a divisible asset, just like any asset that is part of the community property. It is usually the couple’s most valuable asset, ranging from about $500,000 to over $2 million for an average 40-year retirement span. The USFSPA allows the court to treat military retirement funds as disposable asset and to decide how to divide the pension during a divorce or legal separation. The USFSPA also rules that if the marriage and the military service overlap for a period of at least 10 years (this is called the 10/10 rule), the Defense Finance and Accounting Service (DFAS) will directly pay the former spouse’s share of the military retirement. If the overlap is less than 10 years, the military spouse is responsible for the payments.

Besides military retirement pensions, other military benefits need to be addressed during a military divorce. Within one year of the divorce date, the former spouse can ask the court to designate him/her as a Survivor Benefit Plan (SBP) beneficiary. If the former spouse remarries before age 55, the SBP coverage terminates, unless that spouse’s marriage ends in divorce or death. In regards to health insurance coverage, a former spouse is eligible to receive medical coverage under TRICARE if the marriage and military service overlap for at least 20 years and the former spouse hasn’t enrolled in an employee sponsored health plan. As for the children, as long as they remain legal dependents of the service member after the divorce, they will be able to retain full military benefits until they reach the age of 22 or they get married.

It is important for the divorcing couple to understand both the civil code and the military regulations that apply to their unique situation. That’s why using a mediator who is experienced in military divorce cases can be very helpful. The mediator can assist the couple in getting familiarized with the various state, federal and military laws in an amicable way before going through the divorce procedure, saving time and energy in the process.