California Military Divorce Lawyers

Military retired pay earned during the marriage may include a community property portion subject to division, but calculating that portion requires looking closely at several dates: 

• When the marriage began
• The service member’s creditable service dates 
• The eventual retirement date 
• The date of separation
• The date of the final divorce order

It’s important to understand that the former spouse does not automatically receive half of the entire pension, only the portion attributable to the marriage.

Dividing military pensions can be structured as a percentage award, a fixed-dollar award, or through another acceptable formula, but whichever approach is used, DFAS-compliant language must appear in the final order for it to be enforceable. 

Does the 10/10 Rule Control Pension Eligibility?

The 10/10 rule is frequently misunderstood. It controls eligibility for direct payments from DFAS, not whether a former spouse is entitled to a share of retired pay at all. The rule requires at least 10 years of marriage overlapping with at least 10 years of creditable military service. 

When a marriage doesn’t meet the 10/10 threshold, a spouse may still receive an interest in the retired pay; it simply means DFAS cannot make direct payments, and another payment method may need to be arranged instead. It’s also worth noting that the 10/10 rule has no bearing on child support or alimony enforcement.

A Court Order Acceptable for Processing, or COAP, is the mechanism used to divide federal civilian retirement benefits under systems such as FERS or CSRS after a divorce (essentially the military equivalent of a QDRO in dividing private-sector retirement plans). It’s issued as part of a divorce action and directs the Office of Personnel Management (OPM) on precisely how eligible retirement funds should be distributed between military service members and their non-military spouse.

Because COAPs govern federal retirement systems rather than private employer plans, they must meet OPM’s specific formatting and content requirements to be accepted and processed. A COAP that’s improperly drafted, incomplete, or missing required language can be rejected by OPM, which may delay the distribution of retirement benefits or require the order to be corrected and resubmitted after the divorce is already final. 

Given these technical requirements, it’s important to work with an attorney familiar with COAPs specifically, since a court order intended to divide a federal employee’s retirement benefits needs to align with OPM’s rules from the outset to avoid unnecessary delays down the road.

For divorces finalized before a service member actually retires, federal law applies what’s known as the “frozen benefit” rule. Under this rule, the pension calculation generally uses the service member’s pay grade and years of service as of the time of the divorce order, rather than at actual retirement. Qualifying cost-of-living adjustments may still apply to that frozen amount between the divorce and retirement, but later promotions and additional years of service generally do not increase the former spouse’s share. 

Because of how technical these calculations can get, we recommend against relying on unsupported pension estimates without complete service and pay records in hand.

Military retired pay generally ends when the retired service member passes away, which is where the Survivor Benefit Plan (SBP) comes in. This is a separate benefit that can provide continuing payments to a designated beneficiary. In a divorce context, this raises questions about former spouse coverage, who is responsible for the premiums, what benefit level applies, election requirements, and deemed election requests.

One detail we can’t stress enough: a one-year deadline applies to former spouse elections and deemed election requests, and missing it can permanently affect a former spouse’s coverage. Pension division language in a divorce order, on its own, may not be enough to preserve SBP coverage, as it typically requires its own specific provisions.

A Thrift Savings Plan (TSP) account is legally distinct from military retired pay and requires its own valid Retirement Benefits Court Order to divide. Dividing a TSP involves its own set of considerations, including the valuation date used, gains and losses since that date, any outstanding loans against the account, tax treatment of the distribution, survivor rights, and the payment method used. A military pension division order does not automatically divide a TSP account. Rather, a separate order is required.

Military retired pay and VA disability compensation are treated very differently under federal law. Federal law excludes retirement pay that has been waived in order to receive disability compensation from the divisible “disposable retired pay” that a court can divide, and a later disability election by the service member may reduce the amount available for division going forward. 

The U.S. Supreme Court has specifically prohibited courts from ordering a service member to reimburse a former spouse for reductions caused by a disability waiver. Support issues, such as child support or spousal support, require a separate analysis from property division and aren’t affected by these disability-related limitations in the same way.