Awarding Military Retirement Benefits in Divorce

A California, or more specifically a Los Angeles military divorce creates several unique legal issues, including the division of military retirement pay. If you or your spouse is in the military and are considering divorce, here is what you should know about the nonmilitary spouse’s rights to military retirement benefits following the divorce.

Along with California’s community property laws, the Uniformed Services Former Spouses’ Protection Act (USFSPA) governs how military retirement benefits are calculated and divided upon divorce.


Jurisdiction of State Courts

Although the military’s position on a divorce is that it is a matter best fit for civilian courts to adjudicate, the USFSPA has a separate jurisdiction requirement.

For a particular state court to have the authority to divide military property pay, the military spouse must: (1) be a legal resident of the state, (2) reside in the state for reasons other than military assignment, or (3) consent to the jurisdiction of the court. Simply being stationed in a state does not constitute residency. Additionally, consent to the court’s jurisdiction does not have to be expressed verbally. Consent can be satisfied by participating in some way in the legal proceeding, such as filing documents with the court.

Division of Military Retirement Pay

For purposes of a military divorce, military retirement pay is classified as property, not income. This means that the nonmilitary spouse may be entitled to a share of the military spouse’s retirement even after the divorce. Subject to state law, The USFSPA allows state courts to divide property and assets like military retirement pay in any way it chooses. There are several accepted formulas for calculating and dividing military retirement pay upon a divorce, depending on whether the retirement pay has matured or not. The most common formula for calculating and dividing military retirement pay that has not yet matured is the Coverture Fraction Formula, which simply divides the number of years of service during marriage by the total number of years of service at the time the military spouse would retire.

The USFSPA provides a mechanism for a nonmilitary spouse to enforce retirement payments directly from the Defense Finance and Accounting (DFAS). However, under the Ten-Year Rule, the DFAS will only make direct payments to the military member’s former spouse if the couple was married at least ten years during which the military spouse was in the service. If the marriage and the military service overlap for less than ten years, the military member must pay his or her former spouse directly rather than the DFAS. Additionally, the maximum amount of military retirement the DFAS will pay the former nonmilitary spouse directly is 50%. Thus, the amount of an award by the court that exceeds 50% must be paid by the military member.

The USFSPA also provides for the enforcement of court-ordered current alimony, current child support and child support arrears. The Los Angeles family law attorneys at Boyd Law can provide valuable information and context to all aspects of a military divorce. You can be assured that your military divorce will be handled as delicately and effectively as possible.