RPM Law

Sharing your pension during a military divorce

There are many aspects we have to consider during a divorce; our pension is definitely one of those small details. Most divorcees assume pensions are split evenly - or "fairly" based on state law - but military couples are not subjected to the same process.

Military divorce cases are covered by federal law in terms of how retired pay is divided between U.S. military service members and former spouses.

 

USFSPA and the 10/10 rule

A federal law known as the Uniformed Services Former Spouses' Protection Act helps enforce standardized rules for alimony and property division in military divorce cases. The act directs states to treat military pensions as property rather than income and governs how to divide retirement pay.

Under the USFSPA, former spouses of service members have to be eligible under the 10/10 rule to receive payments directly from the Defense Finance and Accounting Services - otherwise payments come from the service member's pocket.

To qualify for the 10/10 rule, you and your former spouse must have:

  • Been married to each other for at least the last 10 years, and
  • During those 10 years, the military member performed 10 years of military services

Contrary to popular belief, the 10/10 rule has no influence in what your former spouse receives in payments - only where the payments are coming from.

The most beneficial part of the 10/10 rule is your former spouse does not have to rely on the individual service member for payments. It is also important to note the former spouse only receives a "martial portion" of service member's retired pay, or what they earned during the period of marriage. 

Calculating retired pay

In 2017, the National Defense Authorization Act for Fiscal Year 2017 contained a major revision of how military pension division orders were written. States no longer decide how to divide military retired pay, instead Congress imposed a uniform method of pension division nationally.

The new calculation is based on the service member's rank and time in service at the date of the divorce, plus any cost for living adjustment. There is no exact specification for what your former spouse receives.

If you are a retired service member, your spouse cannot use USFSPA to receive payments. Also, if you were married for less than 10 years or served less than 10 years at divorce date, you are not eligible for the benefits of USFSPA.

This only scrapes the surface of what you will have to deal with during your divorce. It's best to consult with a legal expert or a proper military representative about qualifications for the 10/10 rule and your specific pension division.

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