If you are a military spouse, you may have heard of the 10-year rule, or the 10/10 rule. But you may not be entirely sure what it is, or how it works. There is a surprising amount of confusion around this rule, which has to do with dividing military pensions in a divorce. What is the 10-year rule in a military divorce, and how might it affect you?
Some misconceptions about the 10-year rule include:
- A couple must have been married for at least 10 years before the non-military spouse is entitled to part of the servicemember’s military retired pay in the divorce.
- A couple must have been married for at least 10 years which overlapped with the service member’s active duty for the non-military spouse to be entitled to part of the servicemember’s military retired pay in the divorce.
- The servicemember must have had 10 consecutive years of active service during their marriage in order for the non-military spouse to be entitled to part of the servicemember’s military retired pay.
All of these are incorrect. Even if your marriage lasted less than a year, you may be entitled to a portion of your spouse’s military retired pay in a divorce. South Carolina treats military retired pay like any other asset. To the extent it was earned during the marriage, it is divisible as marital property during the divorce.
The Real 10-Year Rule
The 10-year rule has to do with the Defense Finance and Accounting Service (DFAS). The real 10-year rule is this: in order for the non-military spouse to receive direct payment of the servicemember’s retirement benefits from DFAS after the divorce, the couple must have been married for 10 years during the servicemember’s military service.
Here are some examples to illustrate the rule:
- Avery and Lynn have been married for 11 years. Avery joined the military 4 years into the marriage and has served for seven years. If they divorce, Lynn may be entitled to some of Avery’s military retired pay, but cannot receive direct payment through DFAS. (They have been married for 10 years, but there are not 10 years of overlapping military service.)
- Stacy and Chris have been married for 9 years. Chris has been in the military for 12 years, including their entire 9-year marriage. Stacy may be entitled to a portion of Chris’ military retired pay, but cannot receive direct payment through DFAS. (There are more than 10 years of military service, but not 10 years of marriage.)
- Fran and Joe have been married for 10 years. Joe was in the military for 15 years, but only 5 of those years overlap with the marriage. Fran may be entitled to part of Joe’s military retired pay, but cannot receive direct payment through DFAS. (There were at least 10 years of marriage and at least 10 years of military service, but the marriage and service did not overlap for 10 years.)
- Carol and Lee have been married for 13 years. Carol joined the military just before their wedding and has served for 13 years. Lee may be entitled to a portion of Carol’s military retired pay, AND can receive that pay directly from DFAS (The marriage and military service overlapped for at least 10 years).
What happens if a military spouse is awarded a share of military retired pay in the divorce, but is not eligible for payments directly from DFAS? The parties (or the family court) will have to make arrangements for the military spouse to make payments directly to the non-military spouse after the divorce. Obviously, it is more reliable and less cumbersome for the non-military spouse to receive payments directly from DFAS. Otherwise, if the military spouse fails to make payments, the non-military spouse may have to go back to the family court in order to compel compliance.
Dividing a military pension can be complicated. It’s helpful to have the advice of experienced military divorce attorneys. Division of military pensions is based on disposable retired pay, which is the pension less items like advanced pay, deductions for a survivor benefit plan, waivers in exchange for enhanced civil service benefits or disability pay, and any fines or forfeited amounts due to disciplinary actions. If you have questions about dividing military retired pay or the 10-year rule in a military divorce, we invite you to contact Brinkley Law Firm to schedule a consultation.
FAQs
In reality, the rule is that if at least 10 years of marriage overlaps with at least 10 years of military service, a divorced spouse can receive payment of their share of military retired pay directly from DFAS.
What is the 10 year rule for military divorce? ›
Under the Uniformed Services Former Spouses' Protection Act (USFSPA), the 10/10 rule governs the method of payment. At least ten years of marriage overlapping at least ten years of military service is needed for direct payment from the retired pay center, usually the Defense Finance and Accounting Service (DFAS).
What are the rights of a divorced military spouse? ›
What is a military spouse entitled to in a divorce? A military spouse is entitled to the same fair division of property as a civilian spouse. Depending on the circ*mstances, the court may also order alimony and/or child support. However, there are some special rules applied due to military benefits.
How long does my ex-wife get half my military retirement? ›
These benefits remain for the life of the former spouse, or the Servicemember, or until the former spouse remarries.
What is the frozen benefit rule for military divorce? ›
In short, the former spouse's share of a military retirement is “frozen” as of the date of dissolution. The share awarded receives the benefit of COLAs, but excludes any post-decree promotions or longevity increases.
Does my ex-wife get half my military retirement? ›
Direct Payment of Retired Pay to a Former Spouse
Under the USFSPA no more than 50 percent of a member's disposable retired pay will be sent as a direct payment. However, if there are garnishments for alimony or child support, up to 65 percent may be sent as a direct payment.
What benefits does the military wife get after divorce? ›
After divorce, the former spouse is entitled to the Continued Health Care Benefit Program (CHCBP), which is the Tricare version of “COBRA” for three years. And as long as the spouse remains unmarried and was also awarded a share of the military retirement or SBP, the former spouse may remain on CHCBP for life.
Am I entitled to my husband's military retirement after divorce? ›
No, there is no Federal law that automatically entitles a former spouse to a portion of a member's military retired pay. A former spouse must have been awarded a portion of a member's military retired pay in a State court order.
Can a military spouse get in trouble for cheating? ›
Military members are held to a higher standard of conduct than civilians and can face legal repercussions for committing adultery, even while divorcing their spouse.
What are my rights as a military wife? ›
Full Military Benefits
If you have been married for twenty years or more of their military service, you are entitled to full continuing military health benefits, as well as continuing access to military commissary and exchanges. If you obtain employer-provided health care, military health benefits cease.
The USFSPA affords the Retired Soldier protection in that even when payments are court-ordered, direct payments to former spouses cannot be made unless the parties were married to each other for at least 10 years, during which time the member performed at least 10 years of creditable military service.
Does a second wife get military benefits? ›
Coverage and costs for an election for a new spouse are effective after one year of marriage or upon the birth of a child of that marriage, whichever occurs first. If remarried to the spouse for whom you elected coverage at the time of retirement, coverage and costs are effective immediately.
Will I lose my ex-husband's retirement if I remarry? ›
You can't receive survivor's benefits if you remarry before 60. If you remarry after age 60 (50 if disabled), you can still collect benefits on your former spouse's record. When you reach age 66, you may get retirement benefits from your new or current spouse's record if it is higher.
Do you lose military benefits if divorced? ›
For every other military spouse divorcee, there simply are no military benefits after divorce. Your benefits end the day your divorce is final. However, if you have children together, they will still qualify for military benefits, even if you haven't been married more than 20 years and even if you remarry.
How much is military pension worth in divorce? ›
"The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is reserve retirement points earned during the period of the marriage, divided by the member's total number of reserve retirement points earned."
How long do you have to be married to a veteran to get benefits after divorce? ›
The former spouse was married to the military member for at least 20 years at the time of the divorce, dissolution or annulment. The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to be retired from active duty).
How long do you have to be married to get military retirement in a divorce? ›
In order for a former spouse to qualify for direct payments of retired pay as property under the USFSPA, the former spouse must have been married to the member for 10 years or more during which the member performed at least 10 years of service creditable in determining the member's eligibility for retired pay (the 10/ ...
How much does an ex-wife get from military retirement? ›
Maximum Retirement Payments from DFAS
The maximum portion of a retirement that DFAS will pay a former spouse as part of a property division is 50% of the member's disposable retired pay.
