The so-called 10/10 rule in military divorce law is well known yet often misunderstood. In some cases, this may cause confusion and set unrealistic expectations.
The information below should give you a better idea of what the rule entails. Hopefully, this will enable you to make educated choices about your marital and financial situation in what can be an emotionally trying time.
What Is the 10/10 Rule in Military Divorce?
In 1982, the U.S. Congress passed the Uniformed Services Former Spouses’ Protection Act (USFSPA) to regulate the division of jointly earned marital property when one or both spouses are current or former service members.
Among other things, the USFSPA empowered state courts to divide military retirement pay between ex-spouses as marital property. According to this provision, which soon came to be known as the 10/10 rule, if:
- You were married for at least 10 years; and
- During that time you carried out creditable military service for at least 10 years;
- Your ex-spouse can have their share of the military retirement pay paid directly by the Defense Finance and Accounting Service (DFAS).
What Are Some Misconceptions About the 10/10 Rule?
Here are three of the most common misconceptions about the 10/10 rule in military divorce:
Misconception #1: Your Spouse Is Automatically Entitled to a Portion of the Retirement Pay
Many people are under the wrong impression that as long as the spouses of service members meet the 10-year marriage and service requirements, they are automatically eligible to receive a portion of the military retirement pay. That is not the case.
State courts have primary jurisdiction over the distribution of marital property. The USFSPA merely provides an instrument to enforce court orders and ensure that former spouses receive their portions as directed by the judge.
So, the 10/10 rule has nothing to do with the eligibility to receive retirement pay. It only determines where your ex-spouse’s checks will come from – straight from DFAS or sent by you after you receive your monthly payment.
Misconception #2: Your Spouse May Not Collect Military Retirement Pay Unless You Were Married for 10 Years or More
The 10-year requirement is another common source of confusion. It often leads people to believe they are not entitled to retirement pay unless they were married for a minimum of 10 years.
That is incorrect – divorce courts may divide retirement pay even if you were married for fewer than 10 years. The 10-year marriage requirement is only relevant to the eligibility to receive direct payment from DFAS.
Misconception #3: The 10-Year Requirement Only Applies to the Duration of the Marriage
The 10/10 rule requires 10 years of marriage and 10 years of creditable military service. So, if you were married for 13 years, but you were in the military for only seven of them, the rule will not be satisfied.
How Much Can Your Spouse Get Under the 10/10 Rule?
Your spouse may only receive a portion of the retirement pay that was earned during the course of the marriage and amounts to no more than 50% of your disposable retired pay. Note that this excludes any:
- Forfeitures ordered by a court-martial
- Funds that were overpaid to the government
- Pay that has been waived so that you can receive VA disability benefits
What are the Benefits of Direct Payment from DFAS?
Direct payment can be beneficial to both spouses. Some advantages include:
- No late or missed payments
- Minimal contact – and potential friction – between you and your ex-spouse
- DFAS will issue a Form 1099-MISC to each party reflecting your respective retirement shares and taxes withheld. This ensures you will not be taxed on payments going to your ex-spouse.
The 10/10 Rule in Military Divorce Law: Final Thoughts
Whether you are an active or a retired service member, the 10/10 rule is just one provision that may apply to your case. Military divorce law is complex and different from civilian law.
As you prepare to go through a divorce, you need to consult with a military divorce lawyer. A specialist attorney can provide you with the information you need, help you make educated choices, and protect your interests in the divorce proceedings.