Division of Military Retirement Pay in a Divorce
There are numerous misconceptions about the division of military retirement pay in event of a divorce. For example, many people believe that the couple must have been married for at least ten years with ten years of military service (the “10/10 rule") in order for the non-service member spouse to be entitled to any portion of the military retirement pay.
This is not true.
This topic is incredibly important since the service member’s retirement is likely to be the largest asset of the marriage. I will explain the general guidelines, but I cannot stress enough that a lawyer with experience in dividing military retirement is a necessity. Specific language and forms are required, and there are certain pitfalls that can make a court’s order of retirement pay to a former spouse unenforceable.
The first point to understand is that there is no Federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must be awarded a portion of a member’s military retired pay in a State court order. The Uniformed Services Former Spouse Protection Act (USFSPA) gave State courts the right to treat military retirement asmarital property.Thus, it is subject to division just like any other marital property during a divorce proceeding. The rationale is that the non-service member spouse contributed to the marriage either through his/her own employment or by supporting and maintaining the home and family of the service member during the time of military service.
What is this 10/10 rule that many people believe is the standard for determining whether the non-service member spouse is eligible to receive any portions of military retirement pay?This rule simply states that the parties must have been married for at least ten years, of which at least ten of those years overlapped the service member’s creditable military service, in order for the former spouse to receive his/her portion of the service member’s retired pay directly from Defense Finance Accounting Service (DFAS). If you do not satisfy the 10/10 rule, the military retirement pay may still be divided, but the service member will be responsible for paying the non-service member spouse directly each month, and would be subject to criminal contempt for disobeying a court’s order should he/she decide not to comply with the order.
How is military retirement pay divided and what are some common pitfalls to avoid? If the parties to the divorce cannot come to an agreement, it is left to the discretion of the state court. In Tennessee, courts must make an “equitable division” of marital property, which generally means equal or 50/50, but not always. Generally speaking, based on a 20-year retirement, the former spouse can expect to accrue about two-and-one-half percent (2%) of disposable retirement pay for each year of marriage that overlaps the service member’s credible military service. Disposable retired pay is a member’s gross retired pay less certain authorized deductions, such as disability pay received through the Veteran’s Administration or amounts deducted from gross pay in order to pay for a Survivor Benefit Plan for the former spouse
The USFSPA mandates that for a retired pay as property award to be enforceable, it must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay. If the retired pay is listed as a fixed dollar amount, the former spouse will not receive the benefit of any of the member’s retired pay cost of living adjustments (COLAs). If the retired pay is listed as a percentage, the former spouse will receive the benefit of any of the member’s retired pay COLAs. If the amount of the former spouse’s award is expressed as a dollar amount or percentage of disposable retired pay less the amount of some other obligation, such as the amount of the Survivor Benefit Plan premium or the former spouse’s child support obligation, then the entire award is unenforceable. There are other pitfalls with language expressing set-offs of certain amounts and involving hypothetical awards (too detailed for this article) that can make an award unenforceable.
This is intended as a brief overview of the main points of dividing military retirement pay in a divorce. The most important theme to take away from this article is that military pay is marital property that must be divided by a court during your divorce proceedings and careful, precise language is required that can best be supplied by a knowledgeable attorney.