Separation and divorce are never easy issues to deal with, but with a military marriage, separation and divorce can bring up unique issues not found in their civilian counterparts.
In 1982 a law was passed called the Uniformed Services Former Spouses' Protection Act (USFSPA) which gives state divorce courts the ability to treat military retirement pay as marital property which can be divided between the spouses.
The 10/10 Rule
The 10/10 rule, which is part of USFSPA is often misunderstood in its scope. Many people mistakenly believe that military spouses are only eligible to receive a division of the military retirement pay if they were married to their spouse for at least 10 years and that 10 of those years were "creditable" military service years.
Here is how the 10/10 rule works:
- If you were married for at least 10 years to your spouse, and during that time your spouse performed creditable military service for at least 10 years, you can have your portion of the divided military retirement pay sent to you directly from the Defense Finance and Accounting Service (DFAS).
All the 10/10 rule has to do with is where your check comes from - directly from DFAS or sent to you by your ex-spouse, after they receive their monthly payment. It has nothing to do with whether or not you are eligible to have the retirement pay divided.
Dividing Retirement Pay
Military retirement pay division is handled at the state court level, but USFSPA limits the division to not greater than 50% of the disposable retirement pay, which is the gross pay less any authorized expenses.
If the 10/10 rule applies in a particular divorce, the amount to be paid to the non-military spouse has to be included in a court order and submitted to DFAS for processing. The amount can only be expressed one of two ways:
- as a fixed dollar amount
- as a percentage of the disposable retirement pay
If a fixed dollar amount is chosen, the non-military spouse will not receive any cost of living adjustments that may apply, because DFAS will have to cut a check for only the amount in the court order.
For that reason, it is often preferable to express the award in terms of a percentage. The percentage itself can be the result of a calculation which takes into account the length of the marriage and the overall length of the military service.
- This is appropriate when the military service member is not yet retired and his or her retirement income cannot be known at the time of the divorce.
- As an example, if a couple was married for 12 years of the military service person's 25 year career, the non-military spouse might be awarded about 24% of the disposable retirement pay.
Get Legal Help
If you or your spouse are current or former members of the military and you are divorcing, contact an attorney who specializes in the unique issues surrounding military divorce in order to protect your rights now and in the future to the greatest extent possible.