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
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!