Military retirement benefits are a significant aspect of divorce proceedings. Under California law, these benefits are considered community property, which is subject to division between spouses upon divorce. This division is based on the premise that the non-military spouse has contributed to the military member’s career, which warrants a share of the retirement benefits accrued during the marriage.
The division process must comply with the Uniformed Services Former Spouses’ Protection Act (USFSPA), which allows state courts to treat military retirement pay as property instead of income. This federal law sets the stage for California to distribute military retirement benefits in divorce.
Determining the share
Calculating each spouse’s share of the military retirement benefits in California typically follows the time rule formula. This formula considers the duration of the marriage and the time the service member spent in active duty to calculate the portion of the retirement pay considered community property. The non-military spouse is usually entitled to a percentage of the retirement benefits based on the proportion of the service member’s military service that occurred during the marriage.
For example, if a couple was married for 10 years, and during eight of those years, one spouse was actively serving in the military, then the retirement pay earned during those eight years would be subject to division.
Special considerations
Several factors can influence how military retirement is divided, including the length of the marriage, the service member’s rank and the total years of service. The division can also be affected by disability pay, which isn’t considered community property and isn’t subject to division. Additionally, the Survivor Benefit Plan, which provides ongoing benefits to survivors of military personnel, can be a critical element during property division.
Division of military retirement can quickly become complex, so working with someone familiar with these matters is beneficial. Remember, this is only one small component of the property division process.
