Military Divorce and the 10/10 Rule
Divorce isn’t easy. It brings anger, resentment and emotional turmoil, and that’s in the best of circumstances. When you’re involved in a military divorce, you have a whole additional set of complications.
Military divorce is different from civilian divorce, and if you’ve lived on base for any length of time, you’ve almost certainly witnessed breakups, and heard military spouses talking about the 10/10 rule. So what is it, exactly?
The 10/10 Rule
In 1982, a law was passed. It’ known as the USFSPA (you know how the military loves its acronyms), or the Uniformed Services Former Spouse Protection Act (USFSPA). Essentially, it gives the divorce court in your state the right to treat your spouse’s military retirement pay as a marital asset that can be divided between the two of you.
A lot of people jump on the number 10, and assume that the 10/10 rule means that you can only get part of his or her retirement pay if you were married for at least ten years, an ten of those years were “creditable military service” years. This isn’t true.
This is How It Works
If you and your spouse were married for at least ten years, and during the time of your marriage your spouse was on creditable military service for at least ten years, then you can demand that your portion of the military retirement pay be sent to you directly from the military, instead of your spouse. It doesn’t have anything to do with your eligibility – it just means that you get your share directly from the military instead of from him or her.
Sound simple? Most times, it is, but here are a few more facts.
You’re Not Automatically Entitled
The USFSPA will not automatically send you a share of the service member’s retirement pay. You have to have been awarded your share by means of a final court order. Court orders that are enforceable include marriage dissolution, divorce, annulment and legal separation.
If the court order was issued before June 26, 1981, it will only be honored if USFSPA requirements are met. Any amendments issued after that date that didn’t specify a division of retirement pay can’t be honored.
Under Section 1408(h), a former spouse of a member who has abused his spouse or child loses his right to retirement pay. Who do you suppose suffers? That’s right, the spouse and child. A former spouse can enforce an order that will divide retirement pay under this section if the requirements are satisfied. The right to payment, however, will terminate if the spouse remarries.
Retirement pay as a property award has to be expressed as either a percentage of the disposable retirement pay (gross minus deductions) or a fixed dollar amount. If the divorce occurred while the member was on active duty, the spousal award may be expressed using a formula – retirement pay does not have to be divided as long as the award isn’t specified in the court order.
It gets worse – in order to enforce orders, the state court has to have jurisdiction by means of the service member being in residence in the state for reasons other than military assignment. Otherwise, the member has to consent to jurisdiction.
You bet it’s complicated. You’d think 10/10 would be easy, but it’s not. So if you’re going through a military divorce, and you want to be assured of receiving your fair share of your ex’s military pension, your best course of action will be to consult a lawyer who specializes in military divorce. It’s the best way to protect your interests.