What is the 10/10 rule in military divorces? By this we are NOT talking about the old “think once, think twice” rule about decision making that goes something like this: “Before making a decision, consider how you might feel about that decision in 10 minutes, 10 months, and 10 years.”
That is likely a good piece of advice to consider when deciding whether or not a divorce is the right course of action for a military couple, but in the context of this article, the 10/10 rule refers to the guidelines issued by the Defense Finance Accounting Service (DFAS) for situations where an ex-spouse of a military member may be entitled to a portion of the veteran’s retirement pay as a condition of the divorce.
In this case, “10/10” refers to the length of time the couple must be married in order for the ex-spouse to be eligible for this, and the service member must serve a minimum of 10 years of military service to be “eligible” under this rule. 10 years of marriage, 10 years of service = 10/10.
The 10/10 Rule For Military Divorces
Go to any marriage law website to research military divorce issues as they are related to military retirement pay, and one of the first things you will learn about is something called the Uniformed Services Former Spouses’ Protection Act (USFSPA).
This is a federal law designed to help clarify rights and responsibilities for military members and ex-spouses who must deal with the retirement pay issue in the context of the divorce.
What does USFSPA do in this context? It is a federal law passed to recognize the right of state courts “to distribute military retired pay to a spouse or former spouse” according to the DFAS official site as well as providing a way to legally enforce these court orders through the DoD. But it does NOT automatically permit an ex-spouse to collect a portion of the service member’s retirement pay.
The DFAS official site reminds that in order for the DoD to enforce the ex-spouse’s receipt of a portion of military retirement pay, that must be directed by the court. DFAS states that this must be awarded as “a portion of a member’s military retired pay as property” in a final court order.
Enforcing Child Support And Alimony
USFSPA establishes the retirement pay rules above but it also gives the ability to enforce “current and/or previously owed (arrears) child support and current alimony awarded in the court order”. In fact, there are a variety of court orders that may be DoD enforceable under the act, including:
- Final decrees of divorce
- Decrees of dissolution
- Annulments
- Legal separation
- Court-ordered property settlements
In these cases, the court order must “provide for the payment of child support, alimony, or retired pay as property, to a former spouse”. In cases of child support and/or alimony, the 10/10 rule is NOT OBSERVED. These are enforceable at any time.
Some Fine Print
Some court orders awarding a portion of military retired pay as property, dated prior to June 26, 1981, can be honored if the requirements of the USFSPA are met. Why does the DFAS official site point out this date?
Because back in 1981, the United States Supreme Court issued a ruling that former spouses of military members could not be awarded a share of military retirement pay as part of a divorce settlement.
But there was backlash; in 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA). State law makes these processes more complicated–some states have “community property” laws governing how the debts incurred in a legal marriage are to be divided in cases of divorce. The federal law provides clarity and a definite process which was much needed.
This requires some caveats for certain situations in and around the dates of the Supreme Court action and the passing of the federal law.
One such caveat – in cases where there has been a divorce with court orders issued prior to June 26, 1981, any amendments to those orders dated after June 25, 1981 (again, for court orders issued prior to June 26, 1981), “which were silent as to providing for a division of retired pay as property,” are not enforceable under USFSPA.
The same is true for court orders issued prior to Nov. 14, 1986 in specific circumstances. DFAS holds that “if any portion of a member’s military retired pay is based on disability retired pay, the orders are unenforceable under the USFSPA.”
The 10/10 Rule In Action
The first thing you should know about the 10/10 rule when applied? It does NOT specifically direct state courts to provide an ex-spouse with a percentage of military retirement pay. What does this mean?
That such an award by the court is an OPTION and is at the discretion of the court. It would be a mistake to proceed with a divorce action under the assumption that a percentage of retirement pay will definitely be awarded–this is not guaranteed in ANY WAY.
Those awarded a portion of an ex-spouse’s military pay in a final court decree are, under DoD rules, paid these funds directly from DFAS, which is typically part of the court’s order. As mentioned above, the couple must have been married for 10 years and the service member must have served a minimum of 10 years for this to be possible.
The Military Member’s Rights
DFAS reports that all relevant portions of the Servicemembers Civil Relief Act must be observed during the state divorce court proceeding. The service member is entitled to certain considerations when dividing military retirement pay as a marital asset or as community property. The service member has the right to have:
- a fixed dollar amount for the award OR
- a percentage of disposable retired pay (gross retired pay minus deductions)
If the divorce happens while the servicemember is still serving, DFAS permits “…the former spouse’s award” to be “expressed by an acceptable formula or hypothetical retired pay award.”
Furthermore, when the court awards a percentage of retirement pay instead of a dollar amount, it is “…automatically construed under the USFSPA as a percentage of disposable retired pay.”
The National Defense Authorization Act of 2017 amended definitions of “disposable” retirement pay for divorces after Dec. 23, 2016. In such cases, the disposable income is restricted to “the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order.”
There are restrictions on the court’s jurisdiction in military divorce cases where the 10/10 rule may apply. For example, the state court must have legal jurisdiction over the service member in any of the following ways:
- The service member lives in the “territorial jurisdiction” of the court other than because of military duty
- The member owns a domicile in the territorial jurisdiction of the court
- The member gives consent to the jurisdiction of the court
- The servicemember indicates his or her consent to the court’s jurisdiction by taking some affirmative action in the legal proceeding
Legal issues such as military divorce should be informed by expert opinions. If you are considering hiring a lawyer, it’s a very good idea to do so even if it is only for a consultation about your rights and responsibilities.
It is crucial to understand your legal rights and obligations under these laws no matter if you are a military member or a civilian spouse. The base legal office cannot provide you with legal representation in a divorce case no matter which side you may be on, but they can inform you as to your rights and responsibilities on either side of the equation and this is one situation where ignorance of the law (military and civilian) can definitely hurt you.
Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News
