Military Benefits and Divorce

Military benefits and their division in a divorce proceeding are one of the most misunderstood topics in a divorce proceeding involving servicemembers. In 1982, Congress passed the Uniformed Services Former Spouse Protection Act (“USFSPA”), which allows state courts to treat and divide disposable retired military pay as property of the service member and his/her spouse in accordance with the laws of the state. All fifty states of the United States acknowledge military retirement pay as an asset that can be divided in a divorce proceeding.

One of the biggest misconceptions is that you must be married for a period of ten years before your spouse is entitled to any portion of your retired pay and this is not correct. Even if you are married for one-year, 100% of the retirement that was accumulated during the marriage is divisible. The division of military retirement is divided based upon a formula that may be expressed in dollars or as a percentage of the member’s disposable retired pay. Any amounts of military retirement accumulated prior to marriage, after the marriage or as a result of disability benefits are the sole property of the service member and are exempt from division in a divorce.

The Following Are A Few Rules Regarding The Division Of And Payment Of Military Benefits:

10/10 Rule– In order for DFAS to make direct payments to the former spouse, the former spouse must have been married to the military member for a period of at least 10 years, with at least 10 years of the marriage overlapping a period of creditable military service. If you meet the 10/10 Rule, DFAS will submit the monthly payments directly to you. A Military Retirement Pension Division Order should be completed and sent to DFAS at the time of your divorce. When the service member retires, DFAS will then begin your payments. If you do not meet the 10/10 Rule, the service member will be required to submit payment directly to the former spouse.

20/15 Rule– If there is less than 20 years of marriage but at least 15 years, the former spouse will be entitled to one year of medical military benefits only.

20/20 Rule– If a Former spouse meets the 20/20 Rule, they will retain all medical, commissary, and military exchange benefits and privileges. The former spouse must have been married to the military member for a period of at least 20 years, with at least 20 years of the marriage overlapping with the creditable military service. Since these benefits are statutory entitlements, they are automatic and do not need to be court-ordered, nor can they be taken away by a spouse or Judge.

If you are involved in a military divorce, ensure that your legal representation is skilled in this area and is aware of what benefits you are entitled to. In a military divorce, all benefits should be addressed at the time of the divorce and you should not wait until it is time for the service member to retire. All documents should be sent to DFAS at the time of the divorce and will be held and processed at the time the service member retires.