Quick Answer
Military divorce in California follows the same basic process as civilian divorce but with specific federal rules affecting service members and their spouses. The Uniformed Services Former Spouses Protection Act (USFSPA) at 10 U.S.C. section 1408 governs division of military retirement. California treats military retirement earned during marriage as community property subject to equal division. The 10/10 rule determines whether the Defense Finance and Accounting Service (DFAS) will pay the former spouse directly. The 20/20/20 and 20/20/15 rules determine continued military benefits for former spouses. The Servicemembers Civil Relief Act (SCRA) at 50 U.S.C. sections 3901 through 4043 protects deployed service members from default judgments. Custody during deployment requires special considerations. California Family Code section 2610 specifically addresses military pension valuation.Table of Contents
Jurisdiction in Military Divorce
Military families face unique jurisdictional issues in divorce. A service member may have legal residence in one state, be stationed in another, and have a spouse living somewhere else. Determining which state has jurisdiction to grant the divorce and divide property requires careful analysis.
California has jurisdiction over a military divorce when either spouse meets California’s residency requirements under California Family Code section 2320: 6 months of California residency and 3 months of county residency. Military service members can establish California residency through actual physical presence and intent. The Soldiers and Sailors Civil Relief Act (now the SCRA) allows a service member to maintain their state of legal residence regardless of where the military stations them.
Choosing where to file is strategic. Different states have different laws on military retirement division, spousal support, and custody. California is generally favorable to service members on some issues and to military spouses on others. Consulting an attorney experienced in military divorce in multiple states can help determine the best filing location.
Service Members Civil Relief Act Protections
The Servicemembers Civil Relief Act (SCRA) at 50 U.S.C. sections 3901 through 4043 provides important protections to active duty military personnel facing civil legal proceedings including divorce. A board-certified family law specialist with military divorce experience can ensure these protections are properly applied.
Stay of Proceedings
Under 50 U.S.C. section 3932, active duty service members can request a stay (postponement) of civil legal proceedings when military service materially affects their ability to defend the case. The initial stay can be granted for 90 days. Additional stays require renewed application showing continued need. This protection prevents default judgments against deployed service members who cannot fully participate in the case.
Protection Against Default Judgments
Before a default judgment can be entered against a service member, the petitioner must file an affidavit stating whether the respondent is in military service. If the respondent is in military service, the court appoints counsel to represent them and the proceedings may be stayed. Default judgments entered without these protections can be set aside under 50 U.S.C. section 3931.
Other SCRA Protections
- Interest rate caps at 6 percent on pre service debts
- Protection against eviction from rental properties
- Protection against repossession of property
- Termination of residential leases without penalty
- Special tax protections
Military Retirement Under USFSPA
The Uniformed Services Former Spouses Protection Act (USFSPA) at 10 U.S.C. section 1408, enacted in 1982, allows state courts to treat military retirement as marital property subject to division in divorce. Before USFSPA, federal law preempted state courts from dividing military retirement. The Act fundamentally changed military divorce.
Under USFSPA, the maximum portion of disposable retired pay a former spouse can receive is 50 percent. California, as a community property state, treats the marital portion of military retirement as community property subject to equal division. The marital portion is the portion earned during the marriage.
Calculating the Community Property Share
The community property share of military retirement is calculated using the time rule. The formula is:
Community Property Percentage = Years of Marriage During Military Service / Total Years of Military Service
The community property percentage is then applied to the retired pay amount and divided equally between the spouses. Each spouse receives half of the community portion. The non military spouse receives one half of the community percentage of total retirement.
Example Calculation
A service member served 20 years total and was married for 15 of those years. The retired pay is $4,000 per month.
- Community property percentage: 15/20 = 75 percent
- Community property share of retirement: $4,000 x 75% = $3,000
- Each spouse’s share: $3,000 / 2 = $1,500 per month
- Service member also receives the 25 percent separate property share: $1,000 per month
- Service member total: $1,500 + $1,000 = $2,500
- Former spouse share: $1,500 per month
The 10/10 Rule for Direct Payment
The 10/10 rule, found in 10 U.S.C. section 1408(d), determines whether the Defense Finance and Accounting Service (DFAS) will pay the former spouse directly. The rule requires:
- The parties were married for at least 10 years
- The military service member served at least 10 years of creditable service during the marriage
If both conditions are met, DFAS can send the former spouse’s share directly to the former spouse. Without the 10/10 rule met, the service member must pay the former spouse directly. This is an important practical consideration. Direct DFAS payments are reliable and automatic. Service member to former spouse payments require ongoing compliance and may need court enforcement if missed.
Common misconception: The 10/10 rule does not determine whether the former spouse is entitled to a share. The former spouse may be entitled to a share even without meeting the 10/10 rule, but they must collect directly from the service member rather than through DFAS.
The 20/20/20 Rule for Continued Benefits
The 20/20/20 rule provides former military spouses with lifetime military benefits if three conditions are met:
- The marriage lasted at least 20 years
- The service member served at least 20 years of creditable service
- The marriage overlapped the military service by at least 20 years
A former spouse meeting the 20/20/20 rule retains lifetime entitlement to:
- TRICARE health insurance (subject to enrollment in Part B Medicare at age 65)
- Military commissary privileges
- Military exchange privileges
- Some military recreational facility access
These benefits continue after divorce as long as the former spouse does not remarry. Remarriage terminates the benefits. This is a powerful consideration for couples approaching the 20 year threshold. Legal separation can preserve the marriage long enough to meet the 20/20/20 requirements, then convert to divorce afterward.
The 20/20/15 Rule for Limited Benefits
A less generous version provides limited benefits when the marriage and service both lasted 20 years but the overlap was 15 to 19 years. The former spouse retains TRICARE coverage for one year after the divorce. After that year, the former spouse can purchase Continued Health Care Benefit Program (CHCBP) coverage for an additional 36 months at full cost.
Military Pay and Allowances in Divorce
Military service members receive multiple forms of compensation that all count as income for support calculations:
Basic Pay
The fixed monthly salary based on rank and years of service. This is the primary component of military compensation and counts as income for both child support and spousal support.
Basic Allowance for Housing (BAH)
BAH varies by location, rank, and dependent status. Service members living off base receive BAH to offset housing costs. BAH is non taxable, but for child support purposes California courts include it as income. Service members may receive BAH for the location where dependents live (BAH II), which can complicate calculations.
Basic Allowance for Subsistence (BAS)
BAS provides food allowance. It is generally counted as income for support calculations.
Special Pay and Bonuses
Service members may receive hazard pay, flight pay, sea pay, reenlistment bonuses, and many other forms of special compensation. All count as income for support calculations. Variable special pay should be averaged over time to capture realistic income.
Disability Pay
VA disability compensation is treated differently from retirement. Under federal law, VA disability is generally not divisible as marital property. However, it counts as income for support calculations in California. The interaction between military retirement and VA disability is complex. Service members who waive military retirement to receive higher VA disability can reduce the amount available for division.
Survivor Benefit Plan Considerations
The Survivor Benefit Plan (SBP) provides annuity income to a designated beneficiary after the service member’s death. Election decisions during divorce have lifetime consequences:
- The service member can elect former spouse coverage during divorce
- Coverage costs approximately 6.5 percent of retired pay
- The former spouse receives 55 percent of retired pay upon the service member’s death
- Coverage continues only if the former spouse does not remarry before age 55
- Failure to elect SBP coverage before divorce can be irreversible
California courts can order former spouse SBP coverage as part of property division. This often makes financial sense for the former spouse because it provides important security against the loss of military retirement income upon the service member’s death.
Custody During Deployment
Active duty service members face unique custody challenges. Deployments can last months and may occur with limited notice. California addresses these realities through specific provisions:
- Custody orders should anticipate deployment with specific provisions
- The non deployed parent typically has primary physical custody during deployment
- Deployment is not a basis for permanent custody modification
- Custody returns to pre deployment arrangements upon return
- Special visitation may be ordered around return from deployment
- Family Care Plans required by the military should align with custody orders
California Family Code section 3047 provides that absence due to active military duty cannot be the sole basis for changing custody. This protects deployed parents from permanently losing custody simply because they were deployed.
Health Insurance Issues
Health insurance is a major practical issue in military divorce:
During Marriage
Active duty service members receive TRICARE health insurance for themselves and their dependents. Coverage continues automatically while married. Even spouses living far from the service member due to military assignments retain TRICARE coverage.
After Divorce
Former spouses lose TRICARE coverage upon divorce unless they meet the 20/20/20 or 20/20/15 rules. Without these protections, former spouses must obtain coverage through other means (employer plans, Affordable Care Act marketplace, or private insurance). This can be expensive, especially for older spouses or those with health conditions.
Children’s Coverage
Children of military service members retain TRICARE coverage as dependents of the service member regardless of divorce. The service member must continue to register them as dependents through the Defense Enrollment Eligibility Reporting System (DEERS). Failure to maintain DEERS registration can cause coverage gaps.
Local Military Bases in the Inland Empire
The Inland Empire has significant military presence affecting many local family law cases:
March Air Reserve Base
Located in Moreno Valley (Riverside County), March ARB hosts Air Force Reserve and Air National Guard units. The base employs thousands of military personnel and contractors. Many families of March ARB personnel live throughout the Inland Empire.
Fort Irwin National Training Center
Located in the Mojave Desert north of Barstow (San Bernardino County), Fort Irwin is a major Army training facility. The remote location creates unique family law considerations. Service members rotate through Fort Irwin for training while families typically live in larger cities. The base has its own legal assistance office.
Other Nearby Military Installations
- Marine Corps Air Ground Combat Center Twentynine Palms (San Bernardino County)
- Edwards Air Force Base (Kern County, near San Bernardino County)
- Naval Air Weapons Station China Lake (Kern County)
- Naval Surface Warfare Center Corona Division (Riverside County)
Frequently Asked Questions
Q: How is military retirement divided in California divorce?
A: California treats military retirement earned during marriage as community property under California Family Code section 2610 and 10 U.S.C. section 1408 (USFSPA). The marital portion is calculated using the time rule: years of marriage during military service divided by total years of military service. The marital portion is divided equally between the spouses, with each receiving half. The non military spouse can receive up to 50 percent of disposable retired pay under USFSPA. Direct payment from DFAS requires meeting the 10/10 rule (10 years marriage during 10 years of service).
Q: What is the 10/10 rule in military divorce?
A: The 10/10 rule, in 10 U.S.C. section 1408(d), determines whether the Defense Finance and Accounting Service (DFAS) will pay the former spouse’s share of military retirement directly. The rule requires the marriage lasted at least 10 years and the service member served at least 10 years of creditable service during the marriage. Without meeting this rule, the former spouse may still be entitled to a share but must collect from the service member directly. The 10/10 rule does not determine entitlement, only the method of payment.
Q: What is the 20/20/20 rule?
A: The 20/20/20 rule provides former military spouses with lifetime military benefits including TRICARE, commissary, and exchange privileges if three conditions are met: the marriage lasted at least 20 years, the service member served at least 20 years of creditable service, and the marriage and service overlapped by at least 20 years. Benefits terminate if the former spouse remarries. The 20/20/20 rule is a powerful reason for couples approaching 20 years of marriage to consider legal separation before divorce to preserve these significant lifetime benefits.
Q: How does the Servicemembers Civil Relief Act protect service members in divorce?
A: The SCRA at 50 U.S.C. sections 3901 through 4043 provides important protections to active duty service members. Most relevant for divorce is the protection against default judgments. Active duty service members can request a stay of proceedings when military service materially affects their ability to defend. The court must appoint counsel before entering default against an active duty service member. Default judgments entered without proper SCRA compliance can be set aside. These protections ensure service members are not disadvantaged simply because they cannot fully participate due to military duties.
Q: Does BAH count as income for child support?
A: Yes. California courts include Basic Allowance for Housing (BAH) as income for child support calculations even though BAH is non taxable. The same applies to Basic Allowance for Subsistence (BAS) and other military allowances. The full military compensation package, including basic pay, BAH, BAS, and special pays, is included in income for support calculations. Variable special pays should be averaged over time. The court considers the full economic value of military compensation, not just taxable pay.
Q: What happens to TRICARE after military divorce?
A: TRICARE coverage for former spouses depends on meeting specific rules. The 20/20/20 rule provides lifetime TRICARE coverage. The 20/20/15 rule provides one year of TRICARE plus the option to purchase CHCBP for 36 months. Without these protections, former spouses lose TRICARE upon divorce. Children of military service members retain TRICARE coverage regardless of divorce, as long as they remain registered in DEERS. Maintaining DEERS registration after divorce is the service member’s responsibility.
Q: Can custody be modified due to military deployment?
A: California Family Code section 3047 specifically provides that absence due to active military duty cannot be the sole basis for changing custody. Custody orders should anticipate deployment with specific provisions for the non deployed parent to have primary care during the deployment, while custody returns to pre deployment arrangements upon return. Special visitation may be ordered around return from deployment to facilitate reunification. The protection ensures deployed parents do not permanently lose custody simply because they served.
Q: What if my spouse is on active duty and we are divorcing?
A: Several considerations apply. First, the SCRA may stay proceedings if your spouse is deployed and cannot participate. Second, you may need to use specific procedures to serve a deployed service member. Third, financial documents may be harder to obtain during deployment. Fourth, custody orders should anticipate continued deployments. Fifth, your spouse may be entitled to military legal assistance through the base legal assistance office. Working with an attorney experienced in military divorce ensures all federal and state requirements are properly addressed.
Bottom Line
Military divorce in California involves the standard California family law process plus important federal overlay. The USFSPA at 10 U.S.C. section 1408 governs military retirement division. The SCRA at 50 U.S.C. sections 3901 through 4043 protects service members in legal proceedings. The 10/10 rule determines DFAS direct payment eligibility. The 20/20/20 and 20/20/15 rules determine continued military benefits. BAH, BAS, and other allowances count as income for support. Custody during deployment requires special provisions. Local military bases including March ARB, Fort Irwin, and Twentynine Palms add to the significant military presence in the Inland Empire.
Military divorce involves complex federal and state law requiring specialized knowledge. A free consultation with a board-certified family law specialist experienced in military divorce can help you understand how these rules apply to your specific situation.
About the Author
Donald Glen Haslam, Esq. is a Board-Certified Family Law Specialist by the California State Bar Board of Legal Specialization and a senior partner at Haslam & Thorne, LLP in Ontario, California. He has practiced family law exclusively for over 40 years, representing families throughout San Bernardino County and the Inland Empire. Reviewed by Brian George Thorne, Esq., Board-Certified Family Law Specialist.
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Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Military divorce involves complex federal and state law. For advice specific to your situation, consult with a licensed family law attorney experienced in military divorce. Reading this article does not create an attorney-client relationship with Haslam & Thorne, LLP.
