How Federal Benefits Are Affected by Military Divorce in California

Military service can make the already complicated challenge of divorce even more difficult. If you are facing a military divorce in California, this short guide will get you started on some of the key issues to think about.

Whether you are the service member or the spouse of one (or are both servicemembers), it’s crucial to seek legal counsel to protect yourself and your assets during the divorce process. Consider connecting with a law firm near your base that specializes in military divorce cases.

How Federal Benefits Are Affected by Military Divorce in California

It is important to understand that this guide merely looks at the applicable laws in the event of a contested divorce that goes to a court verdict. Individual parties in a divorce may agree to other arrangements as part of a negotiated divorce settlement.

Military Retirement Pay

Active duty service members who complete 20 or more years of military service are eligible to receive a lifetime pension upon retirement under the Thrift Savings Plan (TSP), which was updated by Congress in September 2019.

Under the federal Uniformed Services Former Spouses’ Protection Act (USFSPA), and California state law, the disposable portion of the income from these pension payments is considered to be divisible property in the event of a divorce, provided that the marriage lasted for at least 10 years during the period of active duty service. This still applies even if the divorce occurs prior to the servicemember’s retirement. The spouse may receive up to 50 percent of the disposable income from these payments. This is separate from any additional child support, spousal support, or other maintenance payments resulting from the divorce.

There are two common situations that can significantly complicate the division of retirement benefits, but keep in mind that any court will closely consider whether a retired military servicemember is attempting to deny a former spouse the assets to which he or she would have otherwise been entitled:

State of Legal Residence Other Than California

If the servicemember has a state of legal residence other than California and objects to California having jurisdiction over the matter of settling the division of these payments, it could mean that the dispute will be settled by a court in another state. (Note that this only applies to the question of military retirement payments, not child custody or the division of other jointly held property.) A service member might do this if it is more convenient for them, or if their state of legal residence has different laws that would be more favorable to them when it comes to dividing the retirement payments.

Waiving Military Retirement Pay

The law permits military retirees to essentially convert their years of military retirement contributions into a civilian retirement fund. In order to do so, they must waive their right to military retirement pay. If this happens, the military spouse might not be able to claim a portion of these civilian retirement assets.

Child Custody

Child custody in a military divorce is mostly decided in the same way as with civilian divorces. However, there are two additional issues that may factor in:

Likelihood to Deploy

A court will look carefully at a servicemember’s likelihood to go on deployment. This can count against the servicemember in custody proceedings, as it would not likely be in the children’s interest for their primary caregiver to be away for months at a time, potentially in harm’s way.

Either parent may ask a court to revisit this determination later down the road, either when a servicemember’s likelihood to deploy changes, or when the servicemember remarries and can demonstrate that their new spouse (the step-parent) would be a good caregiver for the kids even when the biological parent is deployed.

Disproportionate Provision of Childcare

Military spouses with children often do the lion’s share of the childrearing due to their spouse’s extensive military commitments. Because a court will look closely at the children’s best interests, it can sometimes end up being the case that the military spouse is awarded primary custody in order to minimize disruption to the children’s daily lives.TRICARE and Survivor Benefits

Divorce will usually cost a military spouse their health coverage under TRICARE. Under something called the “20/20/20 rule,” a military spouse may only keep their TRICARE coverage permanently if:

• Their former spouse was a military servicemember for at least 20 years;
• They were married to that servicemember for at least 20 years;
• The marriage itself overlapped the servicemember’s active duty service for at least 20 years;
• The military spouse does not remarry.

Military Base Privileges

After a divorce is finalized, how your military base privileges change depends both on the regulations of your base and also the branch of military your spouse served in.  Popular base privileges also follow the 20/20/20 rule. Confirm with the officials at your base to understand how base access changes after divorce proceedings.

Survivor Benefits

If a military spouse was a beneficiary under a servicemember’s Survivor Benefit Plan while married, this status does not continue in the event of a divorce. It must be addressed as part of the divorce settlement.

Find Out About Transitional Benefits Coverage

There are many instances where a newly divorced military spouse can temporarily keep their access to certain federal benefits associated with their spouse’s military service. This is done to create a safe transitional period for the spouse to land on his or her own feet and begin to provide for themselves.

If you are a military spouse involved in a divorce, your attorney, as well as the military itself, will help you identify these programs. Take advantage of these opportunities, as they are available regardless of the divorce proceedings.