The 10/10 Rule and Military Divorce
Parties to a divorce are generally required to split their marital property and assets (as well as any debts) in accordance with state law. This often includes retirement pay, depending on the details of the case and corresponding property division laws. Military divorce cases, which also are governed by state law, are subject to federal law with respect to how retired pay is disbursed to the former spouses of U.S. military servicemembers.
This article focuses on the so-called "10/10 rule," which governs the manner in which the former spouse of a servicemember may collect his or her court-ordered portion of the servicemember's retired pay in a military divorce case.
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 (USFSPA) helps enforce divorce-related court orders. To clarify, the Act (codified as 10 U.S.C. 1408) 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 (DFAS). 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.
The 10/10 Rule and Military Divorce: Eligibility
If the state court hearing a military divorce case awards retired pay (as marital property) to the former spouse of a servicemember, typically expressed as a percentage of disposable retired pay, the USFSPA will enforce such payments if:
- The servicemember and former spouse were married to each other for at least 10 years; and
- During the time of marriage, the servicemember performed at least 10 years of military service creditable toward retirement eligibility.
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
- Survivor Benefit Plan premiums received by the former spouse
This rule also applies to annulments and legal separations .
How to Apply for Direct Payments Under the USFSPA
If you qualify for direct payments of your court-ordered portion of a servicemembers retired pay, you will need to file DD Form 2293 along with a court-certified copy of the applicable court order (either fax or mail). See Former Spouses' Protection Act: How to Apply for more details.
Get Legal Help Understanding the 10/10 Rule in a Military Divorce
If you are recently divorced or still working through the process, chances are you have your hands full. While it's almost always advisable to get professional legal counsel when ending a marriage, you may need additional help navigating military laws. Consider speaking with a military divorce lawyer licensed in your area for more details.