A California judge can divide your military retirement pay. That same judge cannot touch your VA disability compensation. Settlements that blur the two will produce orders that the Defense Finance and Accounting Service will not honor, and by the time anyone notices, the judgment will usually be final.
Two Bodies of Law Apply at Once
Custody, support and property other than pension follow the California Family Code. The retirement division, benefit eligibility and the timing of the case are determined by federal law.
Residency comes first. Family Code section 2320 requires six months in California and three months in the filing county. A service member stationed here can satisfy this requirement, as can a civilian spouse living independently here.
The Court Needs Separate Authority Over the Pension
The Uniformed Services Former Spouses’ Protection Act allows state courts to divide military retirement pay as marital property. It does not require a division, and it does not automatically transfer the power of the divorce court over the pension.
A court can divide retirement pay only if the servicemember is domiciled in the state and lives there for reasons other than military assignment or consents to the jurisdiction of the court. That last point is important. Consent can be granted by filing a response, sometimes without the serviceman realizing it.
Once jurisdiction exists, state law takes over. Retirements earned during marriage are community property, and Family Code Section 2610 directs courts to divide community interests in the plan.
The Frozen Benefit Rule Changed the Math
For divorces finalized after December 23, 2016, the 2017 National Defense Authorization Act changed how the divisible share is calculated. The former spouse’s portion is fixed to the member’s rank and creditable service as of the order, not the rank that the member eventually retires with. Promotions earned after the divorce belong to the service member.
Orders drafted from pre-2017 templates are still bounced by the DFAS for not including the required figures.
The 10/10 Rule Is Not What Most People Think
Two rules are constantly confused, and the difference is worth learning before you negotiate.
- The 10/10 rule only decides whether DFAS will send the former spouse a direct check. It takes 10 years of marriage plus 10 creditable years of service. If they fall short, the share is still owed and the member just has to pay personally.
- The 20/20/20 rule governs benefits, not pension money. Twenty years of marriage, twenty years of service, and fifteen years of overlap preserve TRICARE, commissary, and exchange privileges for a former spouse who does not remarry. A 20-20-15 overlap buys one transition year of health coverage instead.
Survivor Benefit Plan coverage has its own traps. When a decree awards a former spouse with SBP, they must reach DFAS within a year to file a deemed election if they want to protect their award. If they miss the deadline, their coverage is gone.
Deployment Cannot Cost a Parent Custody
Family Code section 3047 is unusually direct for a custody statute. The absence, relocation, or failure to follow the parenting plan due to activation, mobilization, or deployment out of state cannot by itself justify modifying custody.
Any changes made due to deployment are temporary and are entered without prejudice. They are reviewed when the parent who deployed returns, and the court cannot order a custody evaluation during that review unless the opposing parent makes a prima facie showing that returning is not in the child’s best interests.
Section 3047 also provides deploying parents with three practical tools:
- An expedited hearing prior to departure, upon request.
- Permission to testify and participate in custody mediation via phone or video.
- Visitation for a stepparent, grandparent, or other relative who has a genuine bond with the child, ensuring that the deployed parent’s side of the family remains involved.
The Servicemembers Civil Relief Act provides for a stay of at least 90 days if military duties materially affect a servicemember’s ability to appear in court. It is not automatic, but you must request it and the request must include what the statute requires.
Get the Federal Details Right Before Judgment
Pension language, SBP deadlines, and deployment custody orders are fixable before judgment, but very hard to fix after. Roberts & Zatlin specialize in California family law and bring over 30 years of experience. We serve military families in Temecula, Menifee, Wildomar, Riverside, and San Diego counties. If you have any questions about how state or federal laws apply to your situation, contact us to schedule a free consultation.
