In a military pension divorce in California, the part of the service member’s retired pay earned during the marriage is community property, and the court can divide it between the spouses. Two federal rules decide much of what happens next. The 10/10 rule decides whether the former spouse can be paid directly by the Defense Finance and Accounting Service (DFAS). The 20/20/20 rule decides whether the former spouse keeps military benefits such as TRICARE and commissary access.
If you’re facing this, you may be weighing years of moves, deployments and sacrifice on both sides against an uncertain future. A military pension is often a family’s largest asset, and the rules that govern it come from both California and federal law. This guide explains how those rules fit together, what has changed in recent years, and what you can do to protect your share.
How Military Pension Divorce Works in California
Military retirement pay isn’t automatically divided by federal law. Instead, a federal statute called the Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to treat a service member’s disposable retired pay as property and divide it under state law. In California, that means community property rules apply.
Under In re Marriage of Brown (1976), the California Supreme Court held that pension rights earned during marriage are community property even if they haven’t vested yet. So a service member doesn’t need 20 years of service, or even a vested retirement, for the community to have an interest in it.
A few points surprise people:
- The former spouse’s share doesn’t depend on the 10/10 rule. Any length of marriage that overlaps military service can create a community interest. The 10/10 rule only affects how the share is paid.
- USFSPA doesn’t set a formula or a guaranteed percentage. The California court decides the division.
- Only “disposable” retired pay can be divided, which excludes certain amounts, including VA disability compensation received in place of retired pay.
How California Divides Military Retirement Pay
California courts usually divide a military pension with what’s called the time rule. The community share is a fraction: the months of creditable service during the marriage, up to the date of separation, divided by the total months of service. The former spouse generally receives half of that community share.
For example, if a service member served 20 years and was married for 10 of them, half of the pension is community property, and the former spouse’s share is generally one-quarter of the disposable retired pay. Reserve and National Guard retirements work the same way, but they’re usually measured in retirement points rather than months.
The time rule protects both spouses. The service member keeps the value of service before the marriage and after separation, and the former spouse shares in the years the family served together. Our post on whether California is a community property state explains the broader rules.
The 10/10 Rule: Direct Payment From DFAS
The 10/10 rule decides who sends the former spouse’s share each month. Under 10 U.S.C. section 1408(d)(2), DFAS pays a former spouse’s share of retired pay directly only if the couple was married for at least 10 years while the service member performed at least 10 years of creditable service.
When the 10/10 rule is met:
- DFAS sends the former spouse’s share directly each month, as long as the court order meets federal requirements.
- The former spouse doesn’t depend on the service member to make payments.
- Payments continue until the order’s terms are satisfied or either the service member or the former spouse dies.
When the 10/10 rule isn’t met, the former spouse is still entitled to the share the court awarded. The difference is that the service member pays it directly, and enforcement goes through the state court rather than DFAS. That’s why careful drafting matters in shorter marriages.
To request direct payment, the former spouse submits DD Form 2293, Application for Former Spouse Payments From Retired Pay, with a copy of the court order certified within the previous 90 days.
The 50 Percent Limit and Disposable Retired Pay
Under 10 U.S.C. section 1408(e)(1), the total DFAS can pay to former spouses for property division may not exceed 50 percent of disposable retired pay. Disposable retired pay is the gross retired pay minus certain deductions, including:
- Amounts waived to receive VA disability compensation
- Disability retired pay computed under the military disability retirement statute
- Survivor Benefit Plan premiums for a former spouse who’s the beneficiary under a court order
- Overpayments, recoupments and certain court-martial forfeitures
Because these deductions shrink the amount that can be divided, the actual dollar figure a former spouse receives can be lower than expected. Settlement terms should be written with that in mind.
The Frozen Benefit Rule
In 2016, Congress changed how military pensions are divided when a couple divorces before the service member retires. Under what’s called the frozen benefit rule, for court orders entered after December 23, 2016, the divisible retired pay is based on the service member’s rank and years of service at the time of divorce, not at retirement. Cost-of-living increases between the divorce and retirement are added.
In practice, a former spouse no longer shares in promotions and extra years of service that happen after the divorce. For DFAS to honor the order, it must state:
- The former spouse’s award, as a percentage or fixed amount
- The service member’s high-3 amount at the time of divorce, as an actual dollar figure (or pay grade for members who entered service before September 8, 1980)
- The service member’s creditable years of service at the time of divorce, or reserve retirement points for Guard and Reserve members
If any of these is missing, DFAS can’t process the order and the parties have to go back to court. California courts still apply the time rule, but to a retirement benefit valued as of the divorce. The DFAS court order requirements list each item in detail.
The 20/20/20 Rule: Benefits for Former Military Spouses
The 20/20/20 rule is about benefits, not the pension itself. An unremarried former spouse keeps TRICARE health coverage, commissary and exchange privileges, and access to certain base services if all three of these are true:
- The marriage lasted at least 20 years.
- The service member performed at least 20 years of service creditable toward retirement.
- At least 20 years of the marriage overlapped with that service.
These benefits are lost if the former spouse remarries. TRICARE coverage also ends if the former spouse enrolls in an employer-sponsored health plan. Military OneSource has a helpful overview of the rights and benefits of divorced military spouses.
The 20/20/15 Rule
If the marriage and service each lasted at least 20 years but overlapped by at least 15 years and fewer than 20, the 20/20/15 rule applies. The former spouse keeps TRICARE for one year after the divorce, without commissary or exchange privileges.
Health Coverage When the Rules Don’t Apply
A former spouse who doesn’t qualify under either rule loses TRICARE when the divorce is final. The Continued Health Care Benefit Program (CHCBP) offers temporary coverage, but the application must be made within 60 days of the divorce. The service member’s biological and adopted children generally keep TRICARE until age 21, or 23 if in college. Stepchildren who weren’t adopted lose eligibility at divorce. The TRICARE guide to divorce covers deadlines and plan changes.
VA Disability Pay and Military Retirement in Divorce
VA disability compensation isn’t divisible as community property. To receive it, many retirees waive an equal amount of retired pay, which reduces the disposable retired pay available to a former spouse.
In Howell v. Howell (2017), the U.S. Supreme Court held that a state court can’t order a veteran to reimburse or indemnify a former spouse for the share lost when the veteran later waives retired pay to receive disability benefits. The Court noted that family courts can still take a possible future waiver into account when valuing marital assets at the time of divorce, and can consider the effect on spousal support.
For the former spouse, that makes planning at the settlement stage essential. For the service member, it means a future disability rating can change the numbers for everyone, and it’s worth discussing openly.
The Survivor Benefit Plan
Military retired pay stops when the retiree dies. The Survivor Benefit Plan (SBP) is how a former spouse can keep receiving a monthly annuity afterward. A court can order former spouse SBP coverage, but there are firm deadlines:
- The former spouse can request a “deemed election” with DD Form 2656-10, which DFAS must receive within one year of the court order.
- A retired member converting spouse coverage to former spouse coverage must file DD Form 2656-1 within one year of the divorce.
Missing these deadlines can mean losing survivor coverage permanently. Only one spouse or former spouse can be covered, so former spouse coverage rules out coverage for a new spouse. If the former spouse remarries before age 55, coverage is suspended, and it’s restored if that marriage ends.
The TSP and the Blended Retirement System
Service members who joined on or after January 1, 2018, are covered by the Blended Retirement System (BRS). Its pension uses a 2 percent multiplier instead of the legacy 2.5 percent, paired with automatic and matching government contributions to the Thrift Savings Plan (TSP). For many younger military families, the TSP is now a larger share of the retirement picture.
The portion of a TSP account built during the marriage is community property. Dividing it requires a Retirement Benefits Court Order (RBCO), not the QDRO used for private plans. The order must name the Thrift Savings Plan specifically and can award a percentage or a fixed dollar amount. Payments to a former spouse under an RBCO aren’t subject to the early withdrawal penalty.
Where to File a Military Divorce in California
To end a marriage in California, one spouse must have lived in the state for six months and in the county for three months before filing. Dividing the military pension has a separate federal requirement. Under 10 U.S.C. section 1408(c)(4), a California court can divide military retired pay only if it has jurisdiction over the service member through:
- The service member’s residence in California, other than because of military assignment
- The service member’s domicile in California
- The service member’s consent to the court’s jurisdiction
This matters in San Diego, where many service members are stationed here but keep their legal home in another state. A spouse can sometimes get a California divorce but not a California division of the pension, unless the service member consents to the court’s jurisdiction, which can happen through how they take part in the case. Choosing where to file can affect the outcome, so it’s worth getting advice before anything is filed.
Deployment and the Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act (SCRA) protects service members whose duty prevents them from taking part in a case. Under 50 U.S.C. section 3932, a court must stay the case for at least 90 days if the service member applies with a statement explaining how duty affects their ability to appear, plus a letter from the commanding officer confirming that military leave isn’t authorized. The SCRA also limits default judgments against service members.
A stay pauses the case. It doesn’t end it, and support and custody issues often still need temporary orders.
Support in a Military Divorce
Spousal support and child support in a military divorce follow California law, but military pay adds a wrinkle. In In re Marriage of Stanton (2010), the California Court of Appeal held that the Basic Allowance for Housing (BAH) and the Basic Allowance for Subsistence (BAS) count as income for support purposes, even though they aren’t taxed. A Leave and Earnings Statement is usually the starting point for calculating support. Learn more about spousal support and child support in California.
Because retired pay can be both divided as property and considered when setting support, the two need to be planned together. Custody and parenting plans raise their own military issues, which we cover in our post on military divorce and custody.
Common Mistakes in a Military Pension Divorce
- Leaving out the frozen benefit details, so DFAS rejects the order
- Missing the one-year Survivor Benefit Plan deadline
- Assuming the former spouse gets nothing without 10 years of marriage
- Ignoring the possibility of a future VA disability waiver
- Dividing the pension and the TSP with the wrong type of order
- Not counting BAH and BAS when calculating support
- Filing in a court that can’t divide the pension
Many of these can’t be fixed after the judgment is entered, which is why the drafting stage matters as much as the negotiation.
What You Can Do Now
- Gather documents, including Leave and Earnings Statements, a points statement for Guard or Reserve service, the TSP statement, any VA rating decisions and the marriage certificate.
- Count the years of marriage that overlapped with service. That number determines the 10/10 and 20/20/20 rules.
- Find out where the service member is domiciled, since it affects whether a California court can divide the pension.
- Calendar the Survivor Benefit Plan deadlines as soon as the judgment is entered.
- Talk to an attorney before signing anything. Free legal advice is also available through installation legal assistance offices.
How Shorb & Connor Can Help
Military families give a great deal, and the end of a military marriage shouldn’t mean losing what you earned together or what you served for. At Shorb & Connor, LLP, partners Andrew L. Shorb and Kristin L. Connor bring over 40 years of combined family law experience to San Diego families, including service members and military spouses. From your first call, you speak with our team, and your consultation is with an attorney who takes the time to understand your service history, your family and your goals before recommending a strategy.
Whether you’re the service member or the spouse, we can help you understand how California law and federal military rules apply to your case, and write orders that DFAS will honor. Learn more about our military divorce and asset division services, and see the San Diego divorce timeline for what to expect.
If you have questions about a military pension, call (888) 222-1220 or request a free consultation to talk through your options with an attorney.
Frequently Asked Questions About Military Pension Divorce
Is My Spouse Entitled to My Military Retirement If We Divorce in California?
Generally, yes, for the part earned during the marriage. California treats military retired pay earned during marriage as community property, and the former spouse is usually awarded half of that portion. The 10/10 rule only decides whether DFAS pays the share directly.
What Is the 10/10 Rule in a Military Divorce?
The 10/10 rule allows DFAS to pay a former spouse’s share of military retired pay directly. It applies when the couple was married for at least 10 years while the service member performed at least 10 years of creditable service. Without it, the service member pays the share.
What Is the 20/20/20 Rule for Military Spouses?
The 20/20/20 rule lets an unremarried former spouse keep TRICARE, commissary and exchange benefits. It requires 20 years of marriage, 20 years of creditable service, and at least 20 years of overlap between the two. Remarriage ends these benefits.
What Is the 20/20/15 Rule?
The 20/20/15 rule applies when the marriage and service each lasted at least 20 years but overlapped by 15 to 19 years. The former spouse keeps TRICARE coverage for one year after the divorce, without commissary or exchange privileges.
How Much of a Military Pension Does an Ex-Spouse Get?
There’s no fixed percentage. California courts usually award the former spouse half of the community share, measured by the months of marriage during service divided by total service. DFAS can pay former spouses no more than 50 percent of disposable retired pay.
Do I Lose My Share of a Military Pension If I Remarry?
No. A share of retired pay awarded as property generally continues after remarriage, until the order’s terms are satisfied or either person dies. Remarriage does end 20/20/20 benefits, and remarriage before age 55 suspends Survivor Benefit Plan coverage.
Can VA Disability Pay Be Divided in a California Divorce?
No. VA disability compensation isn’t divisible property. Under Howell v. Howell (2017), a court can’t order a veteran to reimburse a former spouse for retired pay waived to receive disability pay. Courts can consider disability income when setting spousal support.
What Is the Frozen Benefit Rule?
For orders entered after December 23, 2016, when divorce comes before retirement, the divisible pension is based on the service member’s high-3 pay and years of service at the time of divorce, plus later cost-of-living increases. Later promotions belong to the service member.
How Do I Protect My Military Pension in a Divorce?
Make sure the order uses the frozen benefit values, divides only disposable retired pay, and addresses the Survivor Benefit Plan, the TSP and any future disability waiver. Filing in the right court and getting advice before signing a settlement both matter.
