For those not part of the military system, it can be confusing to understand the rules and regulations that govern the various systems. While many military spouses may feel frustrated by the drudgery of these systems, there is some comfort in knowing that the military is a place of regulation, laws, and standards.
When couples divorce within this system, payments from retirement accounts and pensions are made according to the 10/10 rule. This rule doesn’t decide whether a spouse can be paid or not, but rather the rule determines who facilitates payments to the spouse. Spouses with fewer than 10 years may still qualify for retirement, just not for payment directly from the Defense Finance and Accounting Service (DFAS.) According to 10 U.S. Code § 1408(d)(2), if a spouse was married at least 10 years to a service member and the 10 years overlapped 10 years of creditable military service, the spouse can apply for direct payment of their share of retirement benefits directly from the DFAS. It’s important to note that the marriage term of 10 years must overlap with the creditable military service.
Having payments come directly from DFAS has many advantages for the spouse, and while it may seem minor, if a spouse qualifies, applying to DFAS is worth the paperwork and any difficulty. With DFAS handling payments, the former military spouse doesn’t have to worry about missed or late payments. Additionally, the military agency will issue a 1099 at the end of the year accounting for taxes paid and any other necessary information for your filing.
Who is Eligible For the 10/10 Rule in Military Divorce?
Ten in the 10/10 rule refers to the eligibility requirements for spouses who seek payment directly from DFAS.
Ex-spouses of military members are entitled to a certain percentage of their retired pay during a state hearing when divorcing. As long as the following are in place, payments will be enforced under the USFSPA:
- They had been married for at least 10 years
- The military spouse served for at least 10 years during the course of their marriage, which counts toward their eventual retirement
What is the 10/10 Rule's Maximum Award for a Spouse?
This means that the ex-spouse of a military member will be able to receive payments directly from the military and not through their ex-husband. They can receive only the amount of retired pay that they earned during their marriage. In addition, military members are limited to 50 percent of their disposable retired pay. However, this does not include:
- If a court-martial orders forfeitures
- Overpayments to the government
- Waiver of pay so a military member can receive VA disability benefits
- Former spouses of military members receive Survivor Benefit Plan premiums
An experienced family law attorney can assist you if you are going through a military divorce. You can obtain the payments you deserve with the assistance of a military divorce attorney.
What Counts as Creditable Service for 10/10 Rule?
According to 10 U.S. Code § 1405, active-duty service members earn time towards creditable service, also known as 1405 service, any time they worked and qualified to receive active duty pay. Credible service also counts reserve retirement points that qualify for active-duty retirement. Time that does not count towards creditable service totals include:
- Time in AWOL status,
- Time Incarcerated
- Time Lost From Injury Due to Misconduct
To recap, reserve members not called up to active duty get 15 points each year. If a military spouse is married to a service member for at least 10 years and at least 10 of those years overlapped with creditable military time, it doesn’t matter how those 10 years were earned. So, the service member could have been on active duty or reserve, or both.
Maximum Retirement Payments from DFAS
The military payment system DFAS will only manage and remit payment for awards totaling 50% of a service member's pay. Just because DFAS will only manage remittance of half military pay doesn’t mean that a court isn’t allowed to award more than 50%. If more than 50% is awarded, the service member would be responsible for managing the remittance of any payments over 50%.
Empathetic and Knowledgeable Divorce Lawyers
Military divorces aren’t always as straightforward as civilian ones, which is why it can be beneficial to service members to find an attorney who understands the military system. Finding an attorney that knows where military divorces and civilians differ can help alleviate the stress associated with divorce. If you aren’t sure where to begin the divorce process or even where to file for divorce if your service member spouse is deployed, our attorneys can help you understand your rights and where to start. The attorneys at Palmer Rodak can meet with you to review the specifics of your case and create a plan for your divorce. Our attorneys can develop a strategy for your military divorce. Call us today at (760) 573-2223 to schedule a consultation.