If a couple is getting a divorce and one of the spouses is in the military, the service member’s military pension will be a marital asset that will be divided in the divorce. While the service member is in the Armed Forces and employed by the federal government, if he or she gets divorced in California, state laws govern how the pension is divided in divorce.
“What if the service member is already retired from the military?” In that case, it will be easy to divide the military pension. In contrast, if the service member is still in the military or if retirement is a long way away, or if the service member does NOT want to divide their pension equally, things become more complicated.
Is a Lump Sum Better?
When it comes to dividing a military pension, civilian spouses have three options: 1) wait until the service member retires and then receive benefits, 2) take a lump sum buyout, or 3) trade another marital asset. Some divorce attorneys think it’s better for civilian spouses to take a lump sum buyout rather than wait it out in an unpredictable situation.
Sometimes however, unpredictable factors can lead to a court refusing a spouse a lump sum buyout. Instead, the judge takes a “wait and see approach.” In these situations, a judge can say that a decision will not be rendered until the service member becomes eligible for retirement or until he or she actually retires, whichever happens first. When a civilian spouse is forced to wait, it means he or she will have to go back to court in the future and pay more legal fees – not something spouses look forward to.
Qualifying Under the 10/10 Rule
Under the 10/10 rule, the civilian spouse has to be married to the service member for at least 10 years, which must overlap with 10 years of military service for the military to pay the civilian spouse their share of the military pension directly. If the civilian does not take a lump sum payment, he or she will have to rely on their former spouse to pay them their share, and it could be years from the date of the divorce to the date of the retirement from the military. Thus, it could be difficult for the civilian spouse to collect if their former spouse fails to fulfill their duties and pay them.
If you agree to take a lump sum share of your spouse’s retirement when you get divorced, you’ll receive it at the time of the divorce. If you do not take a lump sum payment, you’ll have to wait to receive your share. If it’s going to be years before your spouse is entitled to retirement benefits, you could wait a long time.
If you end up waiting, ask your attorney to include a provision in your divorce that says you’ll receive your share of the military retirement when your former spouse becomes eligible to retire. You should figure out this date ahead of time and be sure to include it in the judgement.
To learn more about military divorces in San Diego, contact us today!
