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Military Retirement Divorce 10/10 Rule

 

In the event of divorce, you should always consult a lawyer — preferably one who has written divorce decrees where one spouse is a member of the military. But here is the basic information about the military retirement divorce 10/10 rule.

Going through a divorce can be a difficult, emotional, and trying time. It can have an impact on your family, your lifestyle, your finances, and your future. When divorce is the only way forward, you may have some questions about what that might mean for both the service member as well as the spouse. Let’s take a look at the 10/10 rule for military divorce.

What is the 10/10 rule for divorce for military retirement?

In 1981, the Supreme Court ruled in the case of McCarty v McCarty that the former spouse of a military member or veteran couldn’t be awarded any share of the military member’s retired pay as part of the divorce and property settlement. In response to this, in 1982, Congress enacted a law to offer some form of financial protection to former spouses by considering retirement pay as marital property that can be divided. A part of this law is called the 10/10 rule. The 10/10 rule has special circumstances that allow the former spouse the opportunity to receive their portion of the retirement pay directly through the Defense Financing and Accounting Service (DFAS). There are, of course, some stipulations for the 10/10 rule to be applied.

Related articleMilitary Retirement Divorce and Remarriage

State courts maintain jurisdiction over military divorce cases, but this law called the Uniformed Services Former Spouse Protection Act (USFSPA), helps to enforce divorce-related court orders. With the 10/10 rule, the law states that if the servicemember and their spouse were married for at least 10 years, and the service member performed at least 10 years of retirement-eligible years of military service, then the former spouse may be awarded a percentage of the disposable retired pay.

There are five main provisions for the USFSPA. Those provisions are:

  1. “It enables state courts to treat disposable military retired pay as divisible property
    in divorce cases.”
  2. “It allows direct payments by the uniformed services (Army, Navy, Marine Corps,
    Air Force, and Coast Guard) of up to 50% of a member’s or former member’s
    disposable retired pay to the former spouse if the settlement involved is in
    compliance with the USFSPA.”
  3. “It allows for the enforcement of alimony and child support (in conjunction with
    previously enacted provisions of law providing for such enforcement regarding
    military personnel in 42 U.S.C. 659).”
  4. “It allows a military member or retired member to voluntarily designate a former
    spouse as a beneficiary under the military Survivor Benefit Plan. This provision
    was later modified by Congress to allow state courts, under certain conditions, to
    order a member or retiree to provide military Survivor Benefit Plan benefits to a
    former spouse.”
  5. “It defines which former spouses are eligible to secure access to military-sponsored medical care benefits (e.g., care at uniformed service facilities), as well as commissary and exchange privileges.”

Military retirement divorce 10/10 rule process

If the former spouse qualifies for direct payments from DFAS for their court-awarded portion of the servicemembers retired pay, they will need to apply for the direct payments using the DD Form 2293 found here, as well as providing a court-certified copy of the court order through fax or mail. For more information about the application process, you can visit this DFAS Former Spouse Protection Act page with the full application process.

Related ArticleWhat It’s Like To Be A Military Spouse Now vs. The 1940s

Receiving payment directly from DFAS has the benefit of not having to receive pay from the individual servicemember. This can alleviate any difficulty in communication or receiving funds at a certain time. It cuts out the middleman when all of the eligibility factors are met. It’s important to keep in mind that former spouses are only eligible for the marital portion of the servicemembers retired pay. This is limited to 50 percent of their disposable retired pay minus:

  • Pay waived in order to receive VA disability payments
  • Any amounts overpaid to the government
  • Forfeitures ordered by a court-martial
  • Survivor Benefit Plan premiums the former spouse receives

This also applies to legal separation and annulments.

Misconceptions about the 10/10 military retirement divorce rule

There seems to be a misconception that, for a former spouse to receive a portion of the veteran’s disposable retirement pay, that they have to have been married for 10 years and in service to the military for 10 years. The 10/10 law is solely focused on offering the option for people with these qualifications to receive this payment directly from DFAS. The two parties involved in the divorce will need to work together, and with legal counsel, to determine what type of separation of assets, finances, retirement, and debt they intend to agree upon. This agreement and the court-ordered result will happen regardless of time in service. The 10/10 rule is just an “extra” or a bonus for those who have served their marriage and served this country for at least 10 years.

If the servicemember and the former spouse don’t meet these eligibility requirements, then they will need to come to an agreement with how the transfer of funds happens between themselves, whether that is by mailing a check, setting up an automatic payment, or something else.

There is nothing wrong with applying for the 10/10 rule as well. It is a practical way for both parties to receive the division of military retirement pay from DFAS. The spouse who is receiving the income from the Defense Finance and Accounting Service will have taxes and other deductions taken out to manage on their own as well, saving extra work for the military spouse.

Related ArticleMilitary Spouse ID Card

The USFSPA is a contentious law

The law is a contentious one. There are people who are supportive of this financial protection for former spouses and there are others who believe it is unfair to the servicemember and should be modified or repealed. Those in favor of the law state that it is within nationally accepted standards of protecting the spouse. Those against the law cite issues such as being unable to properly define what the disposable retired pay is, how it reacts with other retirement systems, and how it might impact concurrent payments of veteran disability compensation and military retired pay.

As with all laws, especially “hot button” laws, it’s important to look at the facts but to also try and see “across the aisle” to try and understand where everyone is coming from.

Divorce isn’t a pleasant experience, usually. It requires a lot of untangling of lives, communicating and coping with a wide range of emotions, as well as putting in the logistical work to help your new life apart flow as smoothly as possible. The military retirement divorce 10/10 rule was created to try and alleviate some of the burdens of having to navigate these obstacles, but it was also created as financial protection for former spouses.

When a couple puts 10 years into their marriage, as well as 10 years into military service, they have both sacrificed for each other, and for the country, each in their own unique ways. It’s important to consult an attorney who is familiar with military divorces so that you can make informed choices based on your own unique personal circumstances.

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