If you are a military spouse, you may have heard of the 10-year rule, or the 10/10 rule. But you may not be entirely sure what it is, or how it works. There is a surprising amount of confusion around this rule, which has to do with dividing military pensions in a divorce. What is the 10-year rule in a military divorce, and how might it affect you?
Some misconceptions about the 10-year rule include:
All of these are incorrect. Even if your marriage lasted less than a year, you may be entitled to a portion of your spouse’s military retired pay in a divorce. South Carolina treats military retired pay like any other asset. To the extent it was earned during the marriage, it is divisible as marital property during the divorce.
The 10-year rule has to do with the Defense Finance and Accounting Service (DFAS). The real 10-year rule is this: in order for the non-military spouse to receive direct payment of the servicemember’s retirement benefits from DFAS after the divorce, the couple must have been married for 10 years during the servicemember’s military service.
Here are some examples to illustrate the rule:
What happens if a military spouse is awarded a share of military retired pay in the divorce, but is not eligible for payments directly from DFAS? The parties (or the family court) will have to make arrangements for the military spouse to make payments directly to the non-military spouse after the divorce. Obviously, it is more reliable and less cumbersome for the non-military spouse to receive payments directly from DFAS. Otherwise, if the military spouse fails to make payments, the non-military spouse may have to go back to the family court in order to compel compliance.
Dividing a military pension can be complicated. It’s helpful to have the advice of experienced military divorce attorneys. Division of military pensions is based on disposable retired pay, which is the pension less items like advanced pay, deductions for a survivor benefit plan, waivers in exchange for enhanced civil service benefits or disability pay, and any fines or forfeited amounts due to disciplinary actions. If you have questions about dividing military retired pay or the 10-year rule in a military divorce, we invite you to contact Brinkley Law Firm to schedule a consultation.