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Marital property and military pensions - how it's divided

Whatever the reason for a couple's separation, the actual process of a divorce can be rather complicated for many people. This is particularly true when it comes to such issues as property division in the state of California.

California is what is known as a "community property" state. This means that most property acquired during marriage is split evenly in the event of divorce. This is vital information to have when separating because obtaining half of what is owed can assist a former spouse in keeping afloat financially post-divorce. One particularly difficult topic that may come up in property division is military pay, which can be a fairly complicated subject.

Until 1982, a spouse was not entitled to the other's military pay in the event of divorce. 1982 was the year that Congress passed legislation that allowed state courts to determine how to split military pensions in the event of separation.

If a California court does have jurisdiction to oversee a divorce involving military pensions, which is typically established by residency, then the court will use what is called the 10/10 Rule to determine who is obligated to make such payments. The 10/10 Rule permits the former spouse to obtain a military pension share directly from the Defense Finance and Accounting Service if the years that the couple was married overlap with the years the spouse served in the military meets or exceeds 10 years. If this time of overlap is less than 10 years, then funds must instead be collected from the former spouse directly.

Additionally, spouses have a fiduciary duty to one another to be upfront and honest about assets available at the time of divorce. If a spouse does not disclose a subset of their earnings, ownership or investments, and the other spouse finds out later, that spouse can demand a modification through the court to account for those originally undisclosed assets.

Source: Boston Herald, "Woman entitled to share of ex's army pension," Gerald Nissenbaum, May 12, 2013

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John T. Chamberlin, Attorney at Law
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