How Is A Military Pension Divided In Divorce?

In years past, the “Time Rule” was used to divide most military pensions. Military pensions that were calculated from years of service and amount of salary rather than points accumulated were divided by the time rule. The Uniformed Services Former Spouse Protection Act (USFSPA), 10 U.S.C. §1408, authorized state courts to apply state law to divide military retirement benefits at divorce. Thus, under California law, military pensions were generally divided using the time rule. (Marriage of Poppe (1979) 97 CA3d 1, 8.)

However, recent updates in federal legislation have revised how military pensions are divided at separation. Under the new bill, the non-employee spouse gets 50% of the community portion but the amount of that interest is “frozen” as of the date of divorce or separation. Thus, the retirement “pie” does not continue shrinking post-separation if the employee spouse continues working.

When The Time Rule Does Not Apply To Military Pensions

Use of the time rule is not appropriate when retirement benefits are based on a points system – for example, Naval reservists – that is correlated to the nature and frequency of the service rendered, not the number of years served. (Marriage of Poppe (1979) 97 CA3d 1, 8.) Apportionment on the basis of the time rule is only appropriate where the amount of the retirement benefits is substantially related to the number of years of service. (Marriage of Thorne and Raccina (2012) 203 Cal.App.4th 492.)

The court can only treat 50% of the “disposable retired pay” as community property. (10 USC § 1408(c)(1).) “Disposable retired pay” is the net monthly amount payable to the military member after certain mandatory deductions. 10 USC §1408(a)(4). Section 1408(a)(4) deductions include:

• Amounts owed by the member to the US for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay (10 USC § 1408(a)(4)(A));
• Forfeitures ordered by court-martial (10 USC § 1408(a)(4)(B));
• Amounts waived in order to receive disability compensation under Title 5 (Civil Service disability) or Title 38 (VA disability) (10 USC § 1408(a)(4)(B));
• The “disability” percentage of the member’s Chapter 61 retired pay (see ¶8:176) (10 USC § 1408(a) (4)(C)); and
• Amounts deducted because of a Chapter 73 election to provide an annuity to a spouse or former spouse to whom payment of a portion of the member’s retired pay is being made pursuant to a court order under § 1408 (10 USC § 1408(a)(4)(D).

The GI Bill

Post 9/11 GI Bill benefits may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding. (38 USC §3020 (f)(3).) The motivation of the GI Bill was for the education of the individual veteran, not their spouse..

Speak To An Experienced Divorce Attorney

Updates in legislation make military pensions in a divorce difficult to handle on your own without the assistance of an experienced divorce attorney. I am Hogan W. Song, and my law firm exclusively focuses on divorce and related family law matters in California. Contact Song Family Law, APLC, in Mission Viejo or Orange at 888-999-0259 or via email for an appointment.