Understanding The 10/10 Rule In Military Divorce What Is It
In the event of a divorce, divided assets might include retirement benefits. Military retirement benefits are subject to some specific rules. In some cases this can allow for retirement benefits owed to the ex spouse of a veteran to be paid to them directly.
However, its not always entirely straightforward. The basis for it is what is known as the 10/10 rule.
Explaining The 10/10 Rule For Military Divorce
Dear Ms. Vicki,
Could you please explain the 10/10 military rule? I may be getting ready to go through a divorce.
— Lillie
Dear Lillie,
I hope you are not going to go through a divorce, but this is a very important question.
Divorce is not easy. It can bring a lot of emotional turmoil, anger and resentment. That is why it is so necessary to get counsel from an attorney before you move forward.
Military divorce can feature many aspects that are different from a civilian divorce. I’m not a lawyer, but this is the basic information about the 10/10 rule.
In 1982, a law was passed called the Uniformed Services Former Spouse Protection Act , which gave state divorce courts the ability to treat military retirement pay as marital property that can be divided between the spouses.
The 10/10 rule, which is part of the USFSPA, is often misunderstood in its scope.
Many people mistakenly believe that military spouses are eligible to receive a division of military retirement pay only if they were married to their spouse for at least 10 years and that 10 of those years were “creditable” military service years. This is not true.
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 instead of from your former spouse.
Splitting Military Retirement In A Divorce
November 29, 2021|Bill Henry
Our holding today is a recognition of the economic and social realities which often characterize military families. In light of these circumstances, it is evident that husbands military career was in reality a joint investment of both parties, and wife has a claim to some portion of husbands military retirement pay which accrued during their years of marriage.In re Marriage of Gallo, 752 P.2d 47, 53
In 1988, the Colorado Supreme Court ruled that military retirement payouts like other pension plans are considered property and therefore subject to division upon divorce. This means that if you are a military spouse considering divorce, you may be entitled to receive part of your spouses military retirement payout in the divorce settlement. This is also important for service members to keep in mind if they are considering ending their marriage.
In this article, you will learn about the factors that divorce courts consider when dividing military retirement.
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What Counts As Creditable Service For The 10/10 Rule
Creditable service includes the years of service for which a member was eligible to receive active duty pay. 10 U.S.C.S. § 1405 It excludes time in AWOL status, time incarcerated, or time lost due to an injury caused by the members misconduct. 10 U.S.C.S. § 972
Additionally, if a spouse is married for at least 10 years overlapping military duty, it doesnt matter if those 10 years are all active duty, all reserve, or a combination of both.
When Does The 10/10 Rule Matter In Military Divorces
On Behalf of Wood Law Firm | Jul 19, 2021 | Military Family Law |
Certain things are different in military divorces than in civilian divorces. For example, adultery could be a big deal for a military service member, while it would be a non-issue in the civilian courts in most cases.
Military service can complicate custody arrangements and property division or spousal support because marital status has a direct impact on what a service member earns. There will also often be confusion or conflict about benefits.
Those who aspire to a military career will eventually qualify for military retirement benefits. Their spouses will likely have made major sacrifices to keep their family stable during military service and will probably expect a share of the military retirement if they divorce. When might the 10/10 rule affect your rights to military retirement benefits in a divorce?
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What Does It Mean To Get Paid Directly By Dfas
DFAS is the acronym for the U.S. Defense Finance Accounting Service. When a military service member is eligible to receive military retirement benefits, they will receive a monthly payment of these benefits in the form of a check or direct deposit from DFAS.
Getting your money directly from DFAS is reliable, convenient, and all but failproof. The alternative for couples that do not satisfy the 10 10 rule is that any awarded military retirement benefits will be paid directly by the military service member themself. This situation means that an individual will have to send a check or deposit monthly, which can be less reliable should financial issues come up, and it may also mean other complications.
Receiving payment from DFAS is, therefore, ideal. However, couples who did not meet the 10 10 rule at the time of their divorce do have other options for arranging timely payment of awarded military retirement benefits. These can include automatic banking transfers, manual payment apportionment, and other options.
What Is The 10/10 Rule When It Comes To Military Retirement
It is probably most preferable for you to receive a garnishment order to obtain monthly payments of your spouse’s military pension from the government directly. This is because your spouse may be moved around from place to place across the country and world after your divorce. The prospects of chasing around your spouse from country to country aren’t all that appealing. Instead, collecting monthly payments directly from the military into your bank account is much easier and cost-effective. In the divorce, you would likely request direct payments from the government rather than having to rely upon your spouse to do anything specifically.
As with anything else related to military retirement pay and divorce, specific deadlines and dates are involved when you, as a former spouse, want to get an order that gives you direct payment from the retirement pay center of the military. Given that Texas is a Community property state, if the military pension is divided between you and your spouse, there have to be at least ten years of marriage that coincides with ten years of military service that counts towards retirement. If there is no overlapping these two ten-year periods, you cannot receive payments directly from the retirement pay center.
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Do You Position Yourself To Receive Military Benefits During And After A Divorce
One of the significant concerns that many military spouses have in considering a divorce is determining whether or not they and their children will continue to receive benefits from the military after the divorce. You and your children need health insurance for routine medical checkups and more emergency circumstances in the immediate sense. Additionally, you may have legitimate concerns over your well-being on a long-term basis. Thus, receiving payment from your spouse’s military pension becomes more and more important the older you get.
I have worked with a handful of families where a military spouse has chosen not to move towards a divorce to continue to receive military benefits in the short term. This is the ultimate tradeoff in that you are exchanging you are happy to receive significant help for yourself and your family. What I would say is that this sort of tradeoff is not necessary. Instead, you can learn more about military benefits in how they will impact your divorce by contacting an experienced family law attorney today.
Dividing Military Retirement Pay As Community Property
Under the USFSPA, military retirement pay awarded to a former spouse in a divorce case must be expressed as either a fixed dollar amount or a percentage of disposable retired pay . Should the divorce take place while the service member is on active duty, the former spouses award may be expressed by an acceptable formula or hypothetical retired pay award.
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What Is The 10 10 Rule For Military Divorce
Simply put, the 10 10 rule establishes a minimum amount of time for the non-service-member spouse to satisfy before they can receive any awarded retirement benefits directly from DFAS. The numbers refer to the following durations:
- The marriage must have lasted a minimum of 10 years
- The marriage must have overlapped with at least 10 years of service
Also, in order for a service member to be entitled to receive retirement benefits at all, they must serve in the military for at least 20 years. This fact is why the above rule is sometimes referred to as the military spouse 20 10 10 rule.
The 10/10 Rule And Military Divorce: Eligibility
If the state court hearing a military divorce case awards retired pay to the former spouse of a servicemember, typically expressed as a percentage of disposable retired pay, the USFSPA will enforce such payments if:
In this context, “enforcement” means that former spouses will be entitled to receive these payments directly from the military without having to rely on the individual servicemember. Keep in mind that former spouses are entitled only to the “marital portion” of servicemembers’ retired pay — that which was earned during the period of marriage. This is limited to 50 percent of the servicemember’s disposable retired pay, defined as total retired pay, minus the following:
- Forfeitures ordered by a court-martial
- Amounts overpaid to the government
- Pay waived in order to receive VA disability
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How Military Pension Is Divided In A Divorce
For the divorce court to divide the pension, certain requirements must be met first. With the old requirements, the court could give your spouse 50% of your pension based on the rank you would be at retirement, but thats no longer the case. To get further guidance, its best to speak with a qualified military divorce lawyer.
The Usfspa And The 10/10 Rule At A Glance
While state courts retain jurisdiction over military divorce cases, including orders of alimony and property division, the federal Uniformed Services Former Spouses’ Protection Act helps enforce divorce-related court orders. To clarify, the Act does not “entitle” a former spouse to a portion of a servicemember’s pension — that is determined by the state court hearing the case.
Under the USFSPA, the 10/10 rule allows eligible former spouses of servicemembers to receive their court-ordered portion of the servicemember’s retired pay directly from the Defense Finance and Accounting Service . Otherwise, this payment must be procured from the servicemember, which may be inconvenient or logistically difficult.
The number “10” in 10/10 refers to the eligibility requirements for those seeking direct payment from the DFAS.
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Enforcing Child Support And Alimony
USFSPA establishes the retirement pay rules above but it also gives the ability to enforce current and/or previously owed child support and current alimony awarded in the court order. In fact, there are a variety of court orders that may be DoD enforceable under the act, including:
- Final decrees of divorce
- Legal separation
- Court-ordered property settlements
In these cases, the court order must provide for the payment of child support, alimony, or retired pay as property, to a former spouse. In cases of child support and/or alimony, the 10/10 rule is NOT OBSERVED. These are enforceable at any time.
How Divorce Impacts Your Military Benefits
September 6, 2022Military Law
Servicemembers and non-military spouses pursuing a divorce face a unique set of challenges that civilians do not encounter when attempting to dissolve their union. Getting divorced is a complex process, and it is especially complicated in the military.
Where most pitfalls lie is in the division of certain government benefits. There are particular restrictions for veterans that govern how their benefits are divided during a divorce. Depending on the specific benefits conditions, military or veteran benefits may or may not be distributed through a divorce.
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The Breakdown Of The 20/20/20 Rule
The 20/20/20 rule has three components. All three criteria must be met for you to have access to the same benefits as your military spouse:
If a military spouse meets all of these qualifications, they get access to the same benefits as the military member for the rest of their lifeas long as they dont remarry. This means that they receive Tricare, commissary and exchange privileges, and a portion of the spouses retirement pay. They may lose these benefits if they marry someone who is not a military member.
The divorced spouse must sign up for Tricare under their own name and social security number they do not remain on the spouses policy. If an ex-spouse is covered by the 20/20/20 rule, their portion of the military spouses pension is paid directly to them by the Defense Finance and Accounting Service. This is beneficial in contentious divorces, as it limits direct contact between the parties after the divorce.
What About Healthcare
Unfortunately for ex-spouses of military members, the military health benefit TRICARE does not extend to them in all cases. To qualify for continued coverage, the marriage must have lasted for at least 20 years, the military member must have served for at least 20 years, and the marriage and military service must have overlapped for at least 20 years. This is known as the 20/20/20 rule.
As you can imagine, the 20/20/20 rule excludes a lot of divorcing military couples.
The 20/20/15 rule provides a bit of relief to a segment of the population. It states that if the marriage lasted for 20 years, the military member served for 20 years, and the marriage and military service overlapped for 15 years, the non-military spouse is eligible for one year of TRICARE health insurance post-divorce.
If youre the spouse of a military member and plan to divorce and your marriage does not adhere to the 20/20/20 rule or the 20/20/15 rule you would therefore need to find an alternate health insurance source.
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What Is The 10
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 servicemembers military retired pay in the divorce.
- A couple must have been married for at least 10 years which overlapped with the service members active duty for the non-military spouse to be entitled to part of the servicemembers 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 servicemembers military retired pay.
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.
All of these are incorrect. Even if your marriage lasted less than a year, you may be entitled to a portion of your spouses 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.
How Does Health Insurance Factor Into This Discussion
One of the major concerns for military spouses and their families is receiving health insurance coverage during and after a divorce. Suppose you have been married for 20 years, with 20 years of qualifying service for military retirement and overlap of at least 20 years between these two. In that case, if you remain unmarried, you will qualify for full health insurance coverage. This is a more stringent test to pass than the 10-year requirement for direct payment of military retirement benefits. If you have not remarried before you reach age 55, you will be eligible for coverage if you pay a certain premium and receive military retirement at the same time. I think it is a good idea for you to be able to receive both of these.
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Who Is Eligible For The 10/10 Rule In Military Divorce
Ten in the 10/10 rule refers to the eligibility requirements for spouses who seek payment directly from DFAS.
Ex-spouses of military members are entitled to a certain percentage of their retired pay during a state hearing when divorcing. As long as the following are in place, payments will be enforced under the USFSPA:
- They had been married for at least 10 years
- The military spouse served for at least 10 years during the course of their marriage, which counts toward their eventual retirement