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Military Retirement Benefits

California Military Family Law Attorney

Military personnel receive pensions just like any other working individual in the nation. In previous decades, military benefits were treated differently than other retirement benefits, particularly in divorce. In the 70s and early 80s, military pensions were protected from division in the event of a divorce, but in 1982, Congress passed the Uniformed Services Former Spouse Protection Act (USFSPA) so that military retirement benefits are subject to division in a divorce proceeding.

Understanding the USFSPA

The purpose of the USFSPA is to ensure that military spouses are financially protected in divorce. Before the USFSPA was passed, military spouses were likely to suffer severe financial hardship after a divorce because they were not entitled to a share of their spouse's benefits and retirement. Today, these benefits can be divided as the California court sees fit. This means that you will need to retain an excellent California military family law attorney if you are considering divorce.

How are military retirement benefits divided in divorce?

There is no exact formula for how military retirement benefits are divided in a divorce. California is a community property state, which means that all property (including military pensions due to the USFSPA) is equally owned by both spouses in marriage. The court ultimately decides which spouse receives how much of the funds in the pension. However, there are three different ways in which a spouse can receive a portion of the pension. The first is where both spouses create their own written agreement regarding the division of the retirement fund. The second is by litigating for a court order that divides the pension. The third is by awarding the nonmilitary spouse their portion of the pension from alternate funds or property.

The 10/10 Rule

The USFSPA outlines what has come to be known as the "10/10 rule." If two spouses have been married for 10 years and the military spouse has put in at least 10 years of qualifying military service, the spouse is entitled to receive their share of the pension directly from the Defense Finance and Accounting Service (DFAS). Otherwise, they could receive their share from other assets or property. There are many cases where the court determines how much of the funds the nonmilitary spouse is entitled to receive in divorce, but then awards that amount out of alternative funds or marital property. This can also be decided between the spouses in an uncontested divorce agreement.

Find a Military Divorce Lawyer in California

Cutter & Lax, Attorneys at Law has more than 30 years of experience in all types of family law cases. We understand your rights under the USFSPA and can ensure that you receive your fair share of your spouse's military retirement benefits, whether you are the military spouse or the nonmilitary spouse, or even if you are both military servicemembers. Our attorneys will give their full attention to your case, so do not hesitate to contact us and set up your initial case evaluation!

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