The three landmines in military divorce

Military divorce used to follow the same playbook as any other pension division. Then three things happened — a statute, a Supreme Court case, and a new retirement system — and the playbook stopped working. If a military judgment is drafted like a civilian one, someone gets shorted every month, possibly for life.

Landmine 1 — The NDAA 2017 "frozen benefit" rule

For judgments entered after December 23, 2016 where the service member hasn't yet retired, federal law now freezes the divisible retired pay at the member's pay grade and years of service as of the court order (plus cost-of-living adjustments). The practical effect: the Military Pay Office will not recognize the enhancements from promotions and raises earned after judgment.

Under California law, the former spouse is still entitled to those enhancements. So without special arrangements, the former spouse is shorted every month — and the service member remains personally responsible for making up the difference out of pocket. Neither side should want that surprise. The fix has to be built into the judgment: buyouts, support adjustments, shortfall responsibility provisions, and documentation requirements all have to be considered before the ink dries.

Landmine 2 — Howell v. Howell disability waivers

In 2017 the U.S. Supreme Court held that state courts cannot order a veteran to indemnify a former spouse when the veteran waives retired pay in favor of disability payments. Translation: if your ex later takes a disability waiver and your court orders don't address it, your share of the retired pay can shrink — potentially to nothing — and the court can't simply order it restored.

Whether protection is available depends on negotiation and drafting at judgment time: voluntary contractual indemnification, spousal support structures, or an actuarial buyout. After judgment, your options narrow dramatically.

Landmine 3 — The Blended Retirement System

Service members who entered the military after 2017 (and many who opted in) are in the Blended Retirement System: a reduced pension, an enhanced TSP, a mid-career continuation-pay bonus, and lump-sum options at retirement. Each of those features raises its own community property question — what part of a continuation bonus accrued during marriage? What happens to the former spouse's share if the member takes a lump sum against the pension? A judgment that never mentions the BRS leaves all of it to fight about later.

The bottom line

Every single military case requires deliberate choices on all three issues — and those choices have to be made in the marital settlement agreement, not the QDRO. Our office maintains decision flow charts and pre-drafted MSA language covering the NDAA 2017 rules, Howell waivers, and the Blended Retirement System, which we provide to clients and their family law attorneys when we're engaged before judgment is entered. If your judgment is already entered, call us anyway — the sooner we see it, the more options remain.