Armed Forces Family Law

Soldier sitting pensively, family in background.

Military Divorce Attorney Services

When I represent a spouse in a military divorce, I approach the case differently than I would a civilian split. Residency rules, service of process on an active-duty spouse, and the division of a military pension all follow their own procedures. I also see how deployment reshapes a couple's priorities — it often changes what each spouse wants out of custody arrangements and property division.

Filing Location for a Military Divorce

In a civilian case, I typically file in the county where one spouse has been living before the petition goes in. Military families complicate that picture, since active-duty members are frequently stationed somewhere other than their legal home state.

When I evaluate where to file, I look at two things:

  • Duty station — where the service member is currently stationed
  • State of Legal Residency (SLR) — the state the member entered service from, or a later state the member formally adopted as domicile after an extended posting there

These two locations often don't match. I only need one spouse to either reside in or be stationed in California for me to file the case here.

Serving a Deployed Spouse

If I need to file while a service member is deployed or otherwise on extended active duty, I make sure to account for the Servicemembers Civil Relief Act (SCRA). This federal law shields active-duty members from civil proceedings — including a divorce filing — moving forward without their participation, protecting them from a default judgment.

Under the SCRA, I can expect the court to pause proceedings for the length of the member's active duty. That said, a deployed spouse can choose to waive this postponement. When a client waives it, I strongly recommend they still retain counsel to protect their interests throughout the case.

Calculating Support Obligations

Military rules require spousal and child support to start as of the date of separation, though I still apply California law to set the ceiling on what a service member ultimately owes. I also rely on the Uniformed Services Former Spouses' Protection Act (USFSPA) to guide the calculation and division of military benefits.

A few things I always factor into my support calculations:

  • The service member's basic allowances, which count toward income for support purposes
  • Property division outcomes, since they interact with the overall support picture

Dividing Military Retirement Benefits

A service member who completes at least 20 years of active duty earns a lifetime pension, and I treat that pension as I would any other marital asset under the USFSPA. This federal law gives state courts discretion over whether and how to divide military retirement in a divorce, legal separation, or annulment — and California courts, like others, can award up to half of a service member's retirement pension.

I think of a military pension as a government-funded defined benefit plan, since the "contributions" come through service rather than cash. Once a member retires, several benefits come into play:

  • Monthly retirement pay
  • Eligibility for disability benefits
  • Participation in a survivor annuity program
  • Continued exchange and commissary access, plus medical care

The eventual payout depends on total time served, basic pay at retirement, and annual cost-of-living adjustments. If California has jurisdiction over the service member, I can pursue division of the pension here. When a client on the military side wants to challenge jurisdiction over improper domicile, I advise raising that objection immediately — and maintaining it consistently for the rest of the case — especially if postponement rights were waived.

Recent Changes to Pension Division Law

I keep a close eye on a provision buried in the National Defense Authorization Act for Fiscal Year 2017, signed into law on December 23, 2016. It rewrote the USFSPA (10 U.S.C. § 1408) so that a pension for a member who hasn't yet retired at the time of divorce must be divided as if the member had retired on the divorce date. The Defense Finance and Accounting Service (DFAS) now treats the divorce date as the division date.

The Change

This shift put federal law at odds with California's prior approach under In re Marriage of Lehman (1998) 18 Cal.4th 169. Before the change, I could count on most states — including California — applying the "Time Rule": the community property share equals disposable retired pay multiplied by a fraction of marital duty time over total duty time. Roughly half the states instead used a "snapshot" method, valuing the pension as though the member had already retired on the division date. The new federal law makes that minority approach mandatory nationwide.

When I draft a military pension division order today, I need to include different information depending on when the member entered service:

Entered service before September 8, 1980:

  • A fixed amount, percentage, formula, or Time Rule calculation awarded to the former spouse
  • The member's pay grade at the time of divorce
  • The member's years of creditable service at divorce (or creditable reserve points, for a reservist)

Entered service on or after September 8, 1980:

  • A fixed amount, percentage, or Time Rule calculation awarded to the former spouse
  • The member's highest pay amount (actual dollar figure) at the time of divorce
  • The member's years of creditable service at divorce (or creditable reserve points, for a reservist)

I've found DFAS isn't always forthcoming with the details I need to prepare these orders, which adds friction to an already technical process.

Illustrating the Impact

I like to walk clients through a real-world example. Picture a sergeant major (E-9) retiring from the Army after 30 years of service, divorced from his spouse ten years earlier — right when he first enlisted. The pension division order was entered on the divorce date, when he held the rank of sergeant first class (E-7) with 20 years of creditable service.

  • Old Rule: Under the old rule, most states would let him keep the value of his final ten years of service, meaning his former spouse would receive half of 20/30 of his actual retired pay in the handful of states that used the snapshot method.
  • New Rule: Under the new rule, I'd have to secure an order awarding his former spouse 50% of the E-7 pay rate at 20 years of service — as though he'd retired on the divorce date — with her share locked in as of that date.

Questions That Need to Be Addressed

I'll also flag some open questions the new law hasn't resolved:

  • It says nothing about cost-of-living adjustments for the non-military spouse
  • It's silent on whether courts can still honor an alternative division method if the military spouse agrees to one
  • Because California and other western states already permit immediate payments, I anticipate non-military spouses now pushing for immediate payment given the pension is frozen at divorce
  • A dissatisfied spouse retains the option of removing the case to federal court

Next Steps When Your Spouse Is in the Military

I want clients to know that none of these changes touch the Survivor Benefit Plan (SBP) — that award still has its own strict pre-retirement deadlines.

  • The changes likewise don't affect how I establish "entitlement benefits" for a former spouse, such as 20/20/20 determinations for base access and TRICARE eligibility.
  • Given how many moving parts a military divorce involves, I recommend working with an attorney experienced in this area to get support calculations, asset division, and parenting plans, right from the start.

Get Started Legal Consultation

Contact me if you are looking for an experienced military divorce lawyer in Long Beach, CA. Reach out for a free consultation at (562) 426-6522.