The 10 Year Rule in Military Divorce

Fact and Fiction: The 10 Year Rule in Dividing Military Pensions

One of the most confusing items in my divorce practice is the division of military pensions.  In my estimation the main source of the confusion is the 10 Year Rule.  Many service members and their former spouses believe the military pension cannot be divided unless they satisfy the rule.  This is a myth.

Congress enacted the Uniformed Services Former Spouse’s Protection Act (USFSPA) in 1982.  USFSPA allows states to divide military retirement pay as marital property in a divorce.  State law, therefore, determines how the military retirement pay will be divided.  The 10 Year Rule determines whether you can receive payment directly from the pension administrator DFAS.  In order to receive your share of the military retirement pay directly from DFAS, 1) you must have been married to the servicemember for at least 10 years; and 2) the servicemember must have performed at least 10 years of service credible towards retirement during the marriage.  Finally, you must have a court order requiring direct payment from DFAS of your share of the military retirement pay.

If you fail to satisfy the 10 Year Rule, you can still receive a percentage of the marital portion of the military retirement pay.  You just cannot get paid directly from DFAS.  In this scenario, the servicemember would be required to pay you monthly via cash or check.  The servicemember could also set up an allotment which would allow you to be paid automatically.

In summary, the 10 Year Rule is not a bar to the division of military retirement in divorce.  The 10 Year Rule is an administrative limitation to ease the burden on DFAS and prevent DFAS from wasting resources on short marriages.  The actually determination of the marital share of a military pension, i.e how much the former spouse gets, is governed by state law.  In Virginia a court will consider the factors in Code of Virginia § 20-107.3 to determine the division of marital property.  However, USFSPA does limit a former spouse’s recovery to fifty percent of the marital share of the military retirement pay.

If you need help with a military divorce or custody case in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.