Full question:
I am an ex-service man who retired from service 2 years ago. My wife and I have had a falling out and are planning to get a divorce. In the event of a divorce, all our assets and liabilities will be combined and then divided amongst the spouses. I want to know if my military pension will be included while dividing the assets and liabilities.
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: California
Answer:
The Uniformed Services Former Spouses Protection Act (USFSPA) states that military pensions are considered a property that can be divided in a divorce. Under the USFSPA, the state courts were granted discretion to choose how or whether to divide military retirement in case of a divorce, legal separation, or annulment. State courts have the discretion to grant up to half of a service member’s retirement pension as part of a divorce.California is a community property state. Therefore, any asset acquired or earned during the marriage is presumed to be divided equally at the time of a divorce. The assets include real property, bank accounts, vehicles, and retirement accounts, including military pensions. As such, military retirements are considered assets subject to division in a divorce. Unlike other states, California does not prescribe any minimum required length of marriage for a spouse to be entitled to a portion of the military benefits.
Before a California court can divide a military pension, it must have jurisdiction or authority to do so. For other members of the society (civilians), jurisdiction is a fairly easy to determine. If a civilian has been living in the State of California for at least six months and in the county of filing for at least three months, the requirements for jurisdiction have been met. In the case of military members who acquired residency after the same period of time, their domicile does not automatically change due to the location of their duty station. Their choice of domicile can drastically impact the jurisdiction the court has over the spouses’ pension.
A person’s domicile is their “State of Legal Residence” (SLR). It’s the place that is considered as the true, fixed, and permanent home. For those entering the military, their domicile is the state they resided, at the time of entering service.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
