Introduction
As any divorced service member can attest, military divorces are different than civilian divorces. Whether you or your spouse are active duty or a retired veteran, your case will involve special considerations in areas like marital assets, retirement income, and healthcare.
The 10/10 Rule (also referred to as the 10-Year Rule) is a good example of one such issue, as it’s widely misunderstood and often leads to confusion in military divorce cases. Some people will tell you that you need to be married for at least 10 years in order to claim a portion of your military spouse’s retirement pay, while others say the military spouse must complete 10 consecutive years of active duty for the spouse to qualify for benefits.
To help clarify some of the confusion around the rule, we will explain exactly what it is and how the rule can be applied to a divorce.
The 10/10 Rule for Military Retirement Pay
Under the Uniformed Services Former Spouse Protection Act (USFSPA), state divorce courts are allowed to treat military retirement pay as marital property. In the state of Arizona, marital property is referred to as community property and shared equally between spouses. As a result, future military retirement payments can be divided between spouses in a divorce case.
The 10/10 Rule was established by the USFSPA to determine the manner in which former military spouses receive their portion of military retirement payments after a divorce. Contrary to popular opinion, the rule has nothing to do with eligibility for retirement payments. Rather, it governs the method of delivery.
There are two components to the 10/10 Rule — the length of marriage, and the length of creditable military service. Simply put, you must be married to a military service member for at least 10 years, during which time the service member performed creditable military service for at least 10 years. As long as these two conditions are met, the Defense Finance and Accounting Service (DFAS) can divide the service member’s retirement payments and send separate checks directly to each party. If the marriage fails the 10/10 Rule test, DFAS will mail the full check to the service member each month. From there, it would be the service member’s responsibility to send the former spouse their portion of the payment.
It’s obviously more convenient for a divorced couple when DFAS can send two checks, and it eliminates the risk of the service member missing payments to their former spouse (accidentally or intentionally). However, dividing the payments and issuing two checks creates additional administrative work for DFAS, and may not be worth the added cost to the department when the amount of a retirement check is relatively small. The purpose of the 10/10 Rule is to strike a balance by ensuring DFAS only has to spend extra time and money dividing retirement payments when the value of each check is substantial.
Determining the Length of Marriage for the 10/10 Rule
One aspect of the 10/10 Rule that can get tricky is calculating the length of marriage. While this seems relatively straightforward, some states differ on the point at which a marriage legally ends. For most states, a marriage lasts until the date of separation (for the purposes of calculating benefits and dividing property). Other states consider the marriage in effect until the date of divorce. When calculating the length of marriage for the 10/10 Rule, the USFSPA sides with the latter group and considers the time from the date of marriage to the date of divorce.
Dividing Military Retirement Pay as Community Property
Under the USFSPA, military retirement pay awarded to a former spouse in a divorce case must be expressed as either a fixed dollar amount or a percentage of disposable retired pay (gross retired pay minus allowable deductions). Should the divorce take place while the service member is on active duty, the former spouse’s award may be expressed by an acceptable formula or hypothetical retired pay award.
Federal Disability Benefits Are Excluded
When dividing community property pursuant to ARS 25-318 or ARS 25-327, Arizona law prohibits divorce courts from taking the following actions:
- “Consider any federal disability benefits awarded to a veteran for service-connected disabilities pursuant to 10 USC 1413a or 38 USC Chapter 11
- “Indemnify the veteran’s spouse or former spouse for any prejudgment or post-judgement waiver or reduction in military retired or retainer pay related to receipt of the disability benefits
“Award any other income or property of the veteran to the veteran’s spouse or former spouse for any prejudgment or post-judgment waiver or reduction in military retired or retainer pay related to receipt of the disability benefits” (ARS 25-318.01)
What to Do If You Don’t Qualify Under the 10/10 Rule
Receiving your portion of the monthly retirement payment directly from DFAS is certainly the ideal scenario, but it’s not the end of the world if you don’t qualify under the 10/10 Rule. Your attorney will be in the best position to advise how your spouse should deliver your portion of the retirement payments each month. Many people opt for a simple check in the mail, but you can also set up automatic payments or transfers to ensure the military/veteran spouse doesn’t forget each month.
However you choose to structure the monthly payments, the amount and method of delivery should be clearly stated in the divorce decree. If not, you’ll have limited means to enforce the agreement should your former spouse fail to send your portion of the military retirement payments on time.
State Jurisdiction
In order for a court to enforce a divorce order for dividing retirement pay as property, the state court must have jurisdiction over the service member. The USFSPA provides four ways to establish jurisdiction:
- The service member owns a residence in the territorial jurisdiction (excluding military assignment).
- The service member is domiciled in the territorial jurisdiction.
- The service member consents to the court’s jurisdiction.
- The service member indicates their consent to the court’s jurisdiction by taking affirmative action in the legal proceedings.
Note that under the USFSPA, the 10/10 Rule and jurisdiction requirement don’t apply to cases involving child support enforcement or alimony awards.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
