State divorce laws can be confusing, but when one or both spouses are current, former or retired military service members, federal law also plays a role in how the divorce plays out in state court. The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) provides that state courts in divorce (or annulment or legal separation) can include the marital portion of “military retired pay,” often referred to as a military pension, in the court’s marital property division order.
In the divorce decree, the court should normally describe the portion of the servicemember’s retired pay awarded to the nonmilitary spouse either as a percentage of “disposable retired pay” or a fixed dollar amount. These pension payments are normally made monthly, so this percentage or set amount would be applied to the monthly payment to divide it between the military retiree and the ex-spouse.
What is the 10/10 rule?
At this point, the question of how the nonmilitary ex-spouse’s portion of the monthly payout will be transferred to them arises. Of course, the retired servicemember could send or transfer it electronically when they receive it. But if the servicemember and their spouse were married at least 10 years and during the marriage, the servicemember served at least 10 years in the military during which they were eligible for credit toward their pension, the 10/10 rule provides another option.
Under this option, the Defense Finance and Accounting Service (DFAS) processes the split for the ex-spouses by deducting the nonmilitary spouse’s portion from the monthly payment and sending it to them, with the remainder going to the retired servicemember. This can be a good arrangement if there is still conflict or emotional difficulty between them because it minimizes contact between them.
In addition, the nonmilitary ex-spouse would not have to worry about their ex withholding or reducing the other’s portion of retired pay. For the servicemember, there is not much of a downside to having the DFAS divide the payment.
Sometimes, the 10/10 rule is misunderstood to trigger the nonmilitary spouse’s eligibility for a portion of the servicemember’s retired pay, but it has nothing to do with eligibility. Rather, the rule only applies to establish the right to ask for direct payment through DFAS after eligibility was ordered in the state court divorce.
The nonmilitary spouse requests the DFAS payment services by submitting the correct government form along with a certified copy of the court order in the divorce.