U.S. Military (Ret.): ‘10/10 rule’ doesn’t protect retired pay in a divorce - Military Retirement - Navy Times

U.S. Military (Ret.): ‘10/10 rule’ doesn’t protect retired pay in a divorce

Our regular column on issues affecting retired military.

Q. I joined the military in 1992, got married in April 1995, and left the military in November 1995. I re-enlisted in June 2004 and got divorced in April 2005. The divorce decree says I owe my (now remarried) ex-wife half of my future retirement pay. How is this possible? I thought the law said you had to be in the military and married for at least 10 consecutive years for an ex-spouse to get part of your retirement pay.

The so-called “10/10 rule,” an aspect of the Uniformed Services Former Spouse Protection Act, is a source of much confusion among troops and retirees.

In addition to the question above, I have heard from another reader who thought that since he planned to finalize his divorce six months short of reaching 10 years of service (and marriage), his ex-spouse would be ineligible for any of his future retirement pay.

Both readers are incorrect. The 10/10 rule has nothing to do with a state court’s authority to order military retirement pay to be divided as marital property; it affects only how the court-ordered portion of retirement pay is delivered to the ex-spouse.

If a divorce court orders you to divide your retirement pay, your ex-spouse can apply for and receive payment directly from the Defense Finance and Accounting Service if you were married for at least 10 years and also performed overlapping creditable military service during those 10 years.

If the 10/10 requirement isn’t met, a court can still order you to pay part of your military retirement to your ex-spouse. In such cases, you must pay your ex-spouse directly, usually by mailing a monthly check. You would face potential legal action if you didn’t comply.

In other words, the 10/10 rule is simply an enforcement tool under the USFSPA for divisions of military retirement pay ordered by a state court.

Military retirees have argued for years — unsuccessfully — that their retirement pay should not be subject to division in divorce cases at all because it is technically “retainer pay,” because retirees can be recalled to service at any time.

State courts rule every day that former spouses have a vested interest in military retirement pay as marital property, in the same way that 401(k) retirement funds, personal and/or real property, future earnings and/or medical and retirement benefits are considered marital property.

Division of military retirement pay in divorce cases — and the formulas that may apply when DFAS gets involved under the 10/10 rule — can be complex.

More information is available online. Under the heading for Uniformed Services Former Spouses’ Protection Act, click the “Fact Sheet” and “Questions and Answers” links.

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Retired Command Master Chief Alex Keenan served 28 years in the Coast Guard. E-mail him at retired@atpco.com.