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How is a Pension Divided in a Military Divorce?

One of the benefits of enlisting in the military is the retirement pension that is provided with employment. This pension is a deferred compensation for the work performed during their time serving. In order to receive this pension, the individual must work for at least 30 years or have gained enough relevant points. Only once this is completed, the servicemember will receive their pension benefit.

Pension Is Divided According to Community Property Laws

Under the Uniformed Services Former Spouse Protection Act, anyone that is married to a military spouse is entitled to a portion of their pension as per the laws of the state that they file for divorce in. For example, California is a community property state, meaning that each spouse is entitled to 50% of the property and assets obtained during the course of the marriage.

If filing for divorce in California, the courts will look at the total amount of time the couple has been married, the amount of time that the marriage overlapped with the pension, and award each spouse 50% of the overlapping amount. Or, the military spouse can take the entirety of the pension and award their spouse a share of the military pension from other assets.

In order to access the military pension, a few steps should be taken:

  • Bring up the pension and its division during the divorce, not afterwards
  • Request a court order to divide the military pension, either with or without your spouse
  • Send a copy of the court order to the Defense Finance and Accounting Service (DFAS)

One of the key points of dividing a military pension is what happens when this information is sent to DFAS. There is only a limited amount that can be paid to a non-military member from this account. If the marriage lasted less than 10 years of the member's service or if more than 50% of the retirement pay is awarded, it cannot come from DFAS, but the servicememeber's separate assets or income.

In military divorce, there are different considerations than civilian divorce. While the method for divvying up the pension is the same for all divorces in California, payment of the pension and how the pension is received will differ from civilian property division rules.

Are you wondering how your or your spouse's pension will be affected by a military divorce? Contact the military divorce attorneys at Cutter & Lax to get answers to your questions.

Categories: Property Division

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