Military Retired Pay & Divorce: Why Everything You Heard is Wrong
By: Stefanie Blahut
Military divorces are different in a lot of ways when compared to non-military divorces. Plus, there are many misconceptions about important aspects related to military divorce. Whether you are the servicemember or the spouse, it is vital that you understand how divorce impacts military benefits. One of the biggest misconceptions I’ve heard, both as a military spouse and an attorney, is about military retired pay.
The most common misconception is about when a spouse is able to receive a portion of this benefit. I’ve heard servicemembers, spouses, and even attorneys say the following misconceptions about the spouse’s eligibility to receive a part of the benefit: (1) the couple had to be married for at least 10 years, or (2) the couple must have been married during at least 10 years of the service member’s military service.
Neither are true.
Military retired pay is considered a marital asset under the Uniformed Services Former Spouses’ Protection Act (USFSPA). There is no specific time frame that needs to be met for a spouse to be able to receive a part of the servicemember’s military retired pay. This means that a spouse could receive a portion of this benefit even if the couple was married less than a year.
So what is the 10/10 Rule, and what does it apply to?
The 10/10 Rule is about how the spouse receives his/her portion of the servicemember’s military retired pay in the event the court has ordered it to be divided. Defense Finance and Accounting Services (what you probably know as DFAS) has the ability to directly pay the spouse his/her portion rather than receive it directly from the servicemember. However, certain requirements must be met.
Enter the 10/10 Rule. For the spouse to receive his/her part of the benefit directly from DFAS, the couple: (1) must have been married for at least 10 years, and (2) the servicemember must have served at least 10 years of service during the marriage. Again, if the 10/10 Rule does not apply to you, the military retired pay can still be divided. If it is divided and the 10/10 Rule does not apply, the servicemember must pay the spouse directly. This can be done in a number of ways (i.e., sending a check, setting up an automatic payment through the bank, PayPal, etc.).
Finally, it’s important to know one more thing about the 10/10 Rule. The dates used to calculate the division of other marital assets may not be the same dates used to calculate the 10/10 Rule. The 10/10 Rule uses the date of marriage through the date of divorce (the date on your divorce decree). Some states use the date of marriage through the date of separation (not divorce) to determine the division of marital assets.
Being informed is important when going through a military divorce, so don’t believe everything you hear. Do your research and talk to an attorney who really does understand military divorce.