What is the 10-Year Rule in a Military Divorce?

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:

• A couple must have been married for at least 10 years before the non-military spouse is entitled to part of the servicemember’s military retired pay in the divorce.
• A couple must have been married for at least 10 years which overlapped with the service member’s active duty for the non-military spouse to be entitled to part of the servicemember’s military retired pay in the divorce.
• The servicemember must have had 10 consecutive years of active service during their marriage in order for the non-military spouse to be entitled to part of the servicemember’s military retired pay.

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 Real 10-Year Rule

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:

• Avery and Lynn have been married for 11 years. Avery joined the military 4 years into the marriage and has served for seven years. If they divorce, Lynn may be entitled to some of Avery’s military retired pay, but cannot receive direct payment through DFAS. (They have been married for 10 years, but there are not 10 years of overlapping military service.)
• Stacy and Chris have been married for 9 years. Chris has been in the military for 12 years, including their entire 9-year marriage. Stacy may be entitled to a portion of Chris’ military retired pay, but cannot receive direct payment through DFAS. (There are more than 10 years of military service, but not 10 years of marriage.)
• Fran and Joe have been married for 10 years. Joe was in the military for 15 years, but only 5 of those years overlap with the marriage. Fran may be entitled to part of Joe’s military retired pay, but cannot receive direct payment through DFAS. (There were at least 10 years of marriage and at least 10 years of military service, but the marriage and service did not overlap for 10 years.)
• Carol and Lee have been married for 13 years. Carol joined the military just before their wedding and has served for 13 years. Lee may be entitled to a portion of Carol’s military retired pay, AND can receive that pay directly from DFAS (The marriage and military service overlapped for at least 10 years).

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.