Top 5 Mistakes Service Members Make During Divorce

1. Waiting Too Long to File Because of Deployment

Service members often believe they cannot start a divorce while deployed or stationed overseas. That is not true. The SCRA protects you from default judgments while you are away, but it does not stop you from filing. In fact, waiting can hurt you.

California courts divide community property as of the date of separation. If you wait six months to file because you are on a rotation, your spouse may argue that assets acquired during that gap are still community property. Under California Family Code § 2550, the community estate includes everything earned between marriage and separation. The longer you delay establishing that separation date, the more property your spouse can claim.

We also see service members return from deployment to find their spouse has already filed in another state. If the children have been living with your spouse in Texas for six months while you were deployed, Texas may claim custody jurisdiction under the UCCJEA. Filing first in California locks your home state advantage. Do not let deployment stop you from protecting your position.

2. Hiring a Lawyer Who Has Never Seen an LES

Most family law attorneys in California have never handled a military pension division. They do not know what a Leave and Earnings Statement shows. They do not understand the difference between base pay and BAH. They treat military retired pay like a civilian 401k, which is wrong.

Under 10 U.S.C. § 1408, military retired pay is divisible as property, but only if the court has jurisdiction and the order meets specific formatting requirements. A civilian lawyer who has never drafted a military pension order will get it rejected by DFAS. That means your spouse gets nothing, or you get stuck re litigating the division years later.

We also see lawyers miss concurrent receipt. Under 10 U.S.C. § 1414, a retiree with a VA rating of 50% or higher can collect tax free disability compensation and full retired pay simultaneously. That is income for support calculations under California Family Code § 4058, even though the VA portion is not divisible as property. A lawyer who does not know this number exists will set support too low or too high.

Ask your lawyer how many military pension orders they have drafted. If the answer is vague, keep looking.

3. Ignoring the SBP Deadline

The Survivor Benefit Plan, governed by 10 U.S.C. § 1447 et seq., lets a retiree elect a monthly annuity for a former spouse after divorce. But there is a hard deadline. You must elect former spouse coverage within one year of the divorce, and DFAS must receive the proper form. Miss that window and the election is gone forever.

We see service members agree to SBP coverage in their divorce judgment, then assume their lawyer will handle the paperwork. The lawyer forgets. Two years later the retiree dies, and the former spouse gets nothing. The court cannot fix this. DFAS does not care what your judgment says if the form was not filed on time.

If you are the service member, make sure your lawyer knows the deadline. If you are the former spouse, verify the election yourself. Do not trust that someone else will remember. The premium is deducted from retired pay, so the cost is real, but the protection is worth it for most families.

4. Agreeing to Support Without Calculating BAH Correctly

Basic Allowance for Housing counts as income for child and spousal support under California Family Code § 4058. But it is not taxable, and it changes based on your duty station, dependents, and pay grade. A support order based on your BAH in San Diego will be wrong if you PCS to a lower cost area.

We see service members agree to support numbers that look fair on paper but ignore the BAH differential. Then they get orders to a new base, their BAH drops by $1,200 a month, and they are still stuck with the old support order. Modification is possible under California Family Code § 3651, but it takes time and costs money.

The better approach is to build a support order that adjusts for BAH changes. We include clauses that recalculate support if BAH shifts by more than a set percentage. This keeps both parties fair without constant court visits.

5. Failing to Address DEERS and TRICARE in the Judgment

TRICARE eligibility for a former spouse depends on the 20/20/20 rule. Twenty years of marriage, twenty years of service, and twenty years of overlap. If your spouse meets this rule, they keep TRICARE after divorce. If they do not, they lose it.

The mistake is assuming the divorce judgment will automatically notify DEERS. It will not. DEERS is a separate administrative system. Your spouse must update their status themselves, and if they do not, the Defense Enrollment Eligibility Reporting System will eventually drop them. But the timeline matters for continuity of care.

We make sure every military divorce judgment includes a specific paragraph addressing DEERS enrollment, TRICARE eligibility, and the deadline for the former spouse to update their records. We also address commissary and exchange privileges, which follow the same 20/20/20 rule. These details seem small until your spouse shows up at the pharmacy and gets denied.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney client relationship. Military divorce involves federal statutes and specific procedural requirements. Results vary based on specific circumstances, and past performance does not guarantee future outcomes.

Sources:

• Cornell Law School Legal Information Institute
• California Legislative Information
• Defense Finance and Accounting Service