Military Retirement and Division of Assets

San Diego family law attorneys to assist military members with how to get a divorce

When deciding to get a divorce in the military, be sure to recognize the unique skills and knowledge of civilian and military law your divorce attorney needs to possess. There are many potential pitfalls that an inexperienced family law attorney may miss that can damage your case and prevent the best results for both parties. Minella Law Group has quality experience and legal expertise to provide guidance to military members and their spouses considering a divorce.

Our military law attorneys have a genuine respect for military families going through a divorce and dedicate ourselves to making sure the rights and interests of our clients are protected. There are significant issues relating to the division of assets. An example of such an issue involves the protection or pursuit of military retirement, which is one of the most valuable assets a military member possesses. It is vital that your military divorce attorney has an extensive understanding of the Uniformed Services Former Spouses’ Protection Act (USFSPA) because it governs the division of this very important asset.

How to get divorced and the effect of the USFSPA. The USFSPA governs the division of military retirement and allows state courts, according to their own state law, to decide how or whether to divide “disposable retirement pay.” It also provides a direct pay enforcement option for the former spouse receiving a retirement pay property award. The spouse may obtain up to 50% of the military or retired military spouse’s retirement.

Dividing military pension and jurisdiction. In order to divide a military retirement or pension, the court must have the authority to do so through consent of the military spouse or by establishing his or her legal residence in a state. This can be a difficult issue due to frequent moves. Thus, a court may not have the authority to divide the retirement benefits if the non-military spouse files for divorce in a state where the military member does not legally reside.

No automatic pension entitlement. Under federal law, a spouse is not automatically entitled to part of a military member’s retirement pay. A state court must award a portion of the retirement or pension benefits set out in a court order.

The 10/10 Rule in military divorce. Under the USFSPA, a former spouse will receive their share of the military retirement if the marriage and creditable military service (active duty, guard or reserves) overlap for at least 10 years (the 10/10 rule). “10-10” means that the parties have been married for 10 years while the military spouse was on creditable military duty. If you qualify for the 10-10 Rule, the Defense Finance and Accounting Service (DFAS) will garnish the retirement pay of the military spouse by dividing the monthly pension check and sending the court ordered portion to each ex-spouse. If military service and duration of marriage overlap for less than 10 years, the military member spouse will be responsible for directly paying the ex-spouse.

Getting a divorce and military pension division under California law. California law requires that all community property be divided equally. This means that any retirement or pension earnings from the date of marriage until the date of separation are considered community property and are split 50/50, unless a pre-marital agreement exists. Retirement pay earned before the marriage and after separation is considered separate property and is not subject to division between spouses.

How Minella Law Group can assist you with a divorce in the military

If you are in the military or are the spouse of a military member considering divorce, it is important to consult with an experienced family divorce attorney knowledgeable about military law, regulations and the many concerns of a military divorce. A San Diego Family Law Attorney will aggressively assert your rights during the divorce process and will help you obtain or protect military retirement benefits through experienced and honest representation.

For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

Kathy MinellaMilitary Retirement and Division of Assets