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What is the 10/10 rule for dividing military pensions in divorce?

| May 4, 2020 | Military Divorce |

When you’re married to a member of the military, you have a number of advantages. Military housing can be less expensive, you get not just pay but also medical benefits and even commissary privileges, and you can earn retirement benefits in only 20 years. Those benefits can be divided in retirement.

Many people have heard that military spouses can’t get a share of their service member spouse’s retirement unless they meet the 10/10 rule. This rule refers to 10 years of marriage overlapping with 10 years of creditable military service. If your marriage didn’t last that long or didn’t overlap with 10 years of service, the theory goes, you won’t be eligible for any of your spouse’s retirement benefits.

That’s not true. The 10/10 rule is actually much simpler. It only applies to whether the Department of Defense will make a direct deposit of the retired pay to the former spouse. It does NOT determine whether you are eligible for a share in that retired pay. If you don’t meet the 10/10 rule, you will simply be receiving your share of the retirement pay directly from your ex instead of via direct deposit.

Courts divide military retired pay according to state law

In 1982, Congress passed a law called the Uniformed Services Former Spouse Protection Act. This law authorized state courts to divide retired pay if they found that it was part of the marital estate. In other words, when a court finds that a service member’s retired pay is their sole personal property it will not be divided, whereas if it is shared or community property it will be divided. This is similar to the rules on other types of property.

In Arizona, military retired pay is, under most circumstances, considered part of the marital estate and will be divided under our community property rules, as long as an Arizona court has jurisdiction. By contrast, federal disability benefits for service-connected disabilities are not to be divided in divorce.

If you have questions about how your spouse’s military retired pay would be divided in your divorce, contact an experienced family law attorney who has handled military divorces in the past.