How Retirement And Pension Benefits Are Divided After A Military Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmFor military service members, the pension is part of the many retirement benefits they receive after their service. For non-military divorces, retirement benefits and pension plans are also treated as property and get divided accordingly. Except for few changes, it’s not much different for military personnel either. In a court of law, a service member’s retirement and pension benefits are treated as valuable assets during a dissolution of marriage.

Uniformed Services Former Spouse Protection Act

The Uniformed Services Former Spouse Protection Act was passed in 1982 by Congress and allows courts to treat retired pay in the same way as other properties. It means that retired pays can be divided as marital property or can be kept as a separate property, depending on the law. It is hard to say how California courts treat retired pays because mostly it depends on the amount and the divorce case. It differs from case to case.

Minimum 10 years of marriage

It was popularly believed that retired pay can only be divided after the marriage lasted for at least 10 years. In different cases involving military personnel, California courts have awarded a portion of the retirement benefit to the other spouse even though the marriage lasted for less than a year. However, this holds true for benefits and not direct payments. For direct payments, a marriage must have lasted for at least 10 years before the spouse becomes eligible.

Military benefits for former spouse

Former spouses of military personnel are entitled to military benefits as long as he/she meets the criteria. The benefits are statutory entitlements and therefore cannot be subjected to any change or negotiation. The benefits include commissary, medical and military exchanges and in cases where the marriage lasted for at least 20 years, the spouse is entitled to retain all military benefits. The spouse will also receive every benefit if the military personnel served for at least 20 years and if the marriage and military service overlapped for 20 years.

The benefits change according to the duration of marriage and military service.


Divorces for military personnel are no different than divorces for other citizens and division of pension and retirement plans are also based on the same laws. However, the duration of marriage and credible military service matter a lot and influences the amount of benefits a spouse will receive after the dissolution of marriage.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Protections Available To Active Military Personnel During A Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmOverview

Divorce can be a confusing and complicated matter for couples. Military couples face the same issue. Usually, a military divorce is looked upon as a civilian matter and is handled a civilian court. If you are in the military and are heading for a divorce, then you will follow mostly the same procedures as a civilian. However, there are certain Acts and unique laws applicable only for military divorces.

One of the benefits in a military divorce is that you won’t be charged for the legal assistance services. Both service members and their spouse can enjoy the services free of cost through the legal assistant office. The office also does not charge for the notary services it provides.

California military divorce laws

There are two important Acts that you should be aware of if you are into the services and heading for a divorce.

  1. Service members Civil Relief Act

The Service members Civil Relief Act, states that the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter.  Under 50 UCS section 521 and in the discretion of the local California court, active service members have the right to abstain from a divorce during a duty. But this right can only be exercised when a judge belonging to the military finds a good cause.

The Act also provides protection to service members from failure to show up at a trial on the given date and time.

  1. Uniformed Services Former Spouse Protection Act (USFSPA)

If your partner is working in military services, then you are unlikely to get any of the retired pay as per the USFSPA rules and regulations. Instead, the act allows a state to give military disposable retired pay as marital property and divide it in case of a divorce.

The USFSPA allows a former spouse to be designated as a beneficiary for the Survivor Benefit Plan (SBP). The SBP allows retired service members to provide continued income to a named recipient in case of the retiree’s death.

If you are a former spouse, in certain cases, the USFSPA will allow you to continue receiving health care and other benefits. But to be eligible for such benefits you must qualify for the 20/20/20 rule. It means your partner must have provided at least 20 years of good service, the marriage lasted for 20 years and the marriage period overlapped the service period by 20 years.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

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