Divorce cases can get more complex when one spouse is in the military. Dividing assets can be particularly confusing during military divorce. One of the most commonly misunderstood issues is how to divide up a military pension. When considering how to divide up a service member’s pension in divorce cases, the “Ten-Year Rule” or “10/10 rule” often comes up and is often misunderstood. There are many instances where non-military spouses end up missing out on money they were legally entitled to due to a misunderstanding of the regulations.
What is the ten-year rule?
The ten-year rule is often misunderstood as it has a number of complexities. More details are included below. However, as far as most cases are concerned, the ten-year rule simply means that if the military spouse served for 10 years or more and the marriage lasted ten years or more, the Defense Finance and Accounting Service (DFAS) can enforce it and pay the non-service member spouse their entitled share of the military pension.
The ten-year rule is a part of the Uniformed Services Former Spouses’ Protection Act (USFSPA) 10. U.S.C § 1408. The USFSPA has two objectives: providing a method of enforcing USFSPA orders with the Department of Defense and recognizing the right of state courts to distribute military retirement pay to spouses or former spouses who are entitled to military retirement pay. Former spouses should not merely assume they are entitled to a certain portion of a military member’s retired pay. They can only be awarded a portion of the military member’s retired pay by a final court order. Within these regulations is a stipulation protecting the former spouse with the right to child support.
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How does the ten-year rule implicate non-service member spouses in divorce cases?
At times, non-service member spouses are told that they are not entitled to the service member’s pension if they were not married for the full 10 years, which overlap with the military member’s time of service. This is a misconception that often causes the non-service member spouse to miss out on a great deal of money. What is wise to realize is the ten-year rule is simply a requirement that must be met in order to allow the Defense Finance and Accounting Service (DFAS) to enforce and pay the non-service member spouse their entitled share of the military pension. In the event that there were ten years of marriage that happen to overlap with ten years of service, the non-service member can receive payments directly issued by the DFAS. Make sure to carefully research and understand the DFAS and their policies to see which one of these scenarios applies to your particular circumstances. It can be beneficial to get advice from a qualified attorney to be sure you fully understand what amount of money you may be legally entitled to from your former spouse’s military pension.
What happens if the marriage does not meet the ten-year rule?
The non-military spouse can still be eligible for a martial portion of the retirement even if the ten-year rule is not met. Where the distinction lies is that the DFAS cannot enforce or pay the order distributing the military pension to the non-military spouse. It will be the responsibility of the non-military spouse to find alternate means to have the pension provision enforced. Typically, the non-military spouse can have state courts enforce their claim to a portion of their military spouse’s pension. It is important to look at the military pension carefully and get a professional opinion in order to avoid missing out on a substantial amount of money during divorce proceedings.
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What are the military member’s rights?
The military member can often be angry regarding having their pension divided up in divorce due to their many dedicated years of military service. In fact, there is a great deal of confusion about what is exactly allowed in courts to protect a military member’s hard-earned pension. It is important for the military member to seek guidance by attorneys with the knowledge of how to handle divorce proceedings involving former service members. By obtaining this guidance, it will allow the military member to have the best possible outcome of their upcoming divorce proceedings along with an explanation of what the up-to-date rules and regulations are with regards to their military pensions.
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How to divide the retired pay as a marital asset or community property
When considering how the ten-year rule applies to dividing retired pay, retired pay is usually divided as a percentage of disposable retired pay or a fixed dollar amount. These factors are dependent on the particular facts of the case. In the event that a divorce occurs when the parties are on active duty, the former spouse’s award will likely be calculated as a formula equating to a hypothetical retired pay award. In order to see how this formula will impact your particular divorce case, it is best to have a consultation with an attorney to discuss the best possible legal outcomes for your case.
When to speak with an attorney
Issues surrounding how to divide up the total assets of a marriage can be challenging and emotional. It is important to get informed advice when it comes to spouses who have served in the military. The retirement arrangements can be more difficult to understand in many instances. It is important to consult an attorney experienced in handling divorce cases involving former service members. If you have questions about the ten-year rule and its application in Washington state, the legal team at Envision will be happy to help you determine if and how the ten year rule applies to you, and advise you on the best direction for a military divorce. Our experienced law team can also help with any child custody and child support issue that arise as part of your divorce.
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