This is a topic which is fairly straightforward but after having a discussion with colleagues there is a large amount of misunderstanding which I hope to clarify as to the function and impact of the “10-10” rule for military servicemember’s who are going through a divorce.
The “10-10” rule is a common reference to a federal law which relates to the division of military retirement benefits in divorce cases involving servicemembers.
The “10-10” Rule Is a Product Of The USFSPA:
The “10-10” rule is a product of the Uniformed Services Former Spouse Protection Act (USFSPA) which is a federal law that addresses the division of military retirement benefits in divorces. The intent behind the USFSPA was to provide benefits to former spouses of military service members after a divorce. This includes the potential entitlement to a portion of the service member’s military retirement pay.
The most common misunderstanding related to this rule is generally the idea that a service member’s spouse must have been married to him/her for 10 years prior to accruing an interest in the servicemembers military retirement. However, a servicemember spouse is not required to be married to a service member for 10 years to have an interest in the service members military retirement benefits.
This is an extremely common misunderstanding of the application of this rule.
The 10-10 rule refers to a specific requirement outlined in the USFSPA for former spouses to be eligible for direct payment from the military (e.g., DFAS) of their potential share of the military retirement pay.
To meet this requirement, two conditions must be satisfied:
- Ten Years of Marriage: The first “10” in the 10-10 rule signifies that the couple must have been married for at least ten years while the military member was on active duty. The duration of marriage is calculated from the date of the marriage to the date of separation. Importantly, 10 years of marriage is not required for a spouse to claim an interest in a service member’s military retirement division.
- Ten Years of Service Creditable Towards Retirement: The second “10” indicates that the service member must have completed at least ten years of creditable military service during the marriage for the former spouse to be eligible for a portion of their retirement pay.
It’s important to note that the 10-10 rule is a threshold requirement for direct payment of military retirement benefits through the military.
If these conditions are not met, the former spouse is not entitled to a direct payment from the military member’s retirement pay, but other arrangements may still be possible through state court orders or divorce settlements. Again, please note that this has nothing to do with entitlement to begin with which will fall under state law standards, but simply whether direct payment from the military to the former spouse will be made.
Implications of the 10-10 Rule:
The 10-10 rule can have significant implications for both the service member and the former spouse during divorce proceedings. Here are some key points to consider:
- Retirement Pay Division: If the 10-10 rule is satisfied, the former spouse may be entitled to a portion of the service member’s retirement pay and to receive direct payment for that portion from the military (e.g., DFAS). The division is typically based on the marital property laws of the state where the divorce is finalized.
- Survivor Benefit Plan (SBP): The 10-10 rule also impacts the Survivor Benefit Plan, which provides ongoing financial support to the former spouse after the service member’s death. If the conditions are met, the former spouse can remain eligible for SBP coverage.
- State Laws: State laws vary in their treatment of military retirement pay and divorce. It’s essential to consult with a knowledgeable attorney who understands both state and federal laws when navigating military divorce cases.
Conclusion:
Divorce cases involving one or more servicemembers can come with some unique challenges, and understanding the Uniformed Services Former Spouse Protection Act, particularly the 10-10 rule, is crucial for both service members and their former spouses.
The manner by which military retirement division will occur will be dependent on the particular state law standards applied however one thing can always be made relatively clear which is that if the “10-10” rule requirements are satisfied, the former military spouse will be able to receive payments for their portion of the military retirement division directly form the military rather than having to obtain it through their former spouse of some other methods.
If you are a service member or a former spouse facing a military divorce, seeking legal counsel from an attorney experienced in military family law is essential. They can provide guidance on how the USFSPA, including the 10-10 rule, applies to your specific situation and help you navigate the complexities of divorce within the military context.