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Military Divorce 10 Year Rule

The 10/10 rule ensures that the divorced spouse does not miss any payments, while limiting contact between ex-spouses, who have sometimes had a bitter separation. This is federal legislation designed to help clarify the rights and obligations of military personnel and former spouses who must resolve the issue of retirement pension in connection with divorce. The so-called “10/10 rule” (or 10-year rule) is confusing for many people when it comes to a military divorce. Some believe that a couple must have been married for 10 years before a spouse is entitled to a portion of a member`s military pension. Others believe that the parties must be married for ten years during active duty before a spouse is entitled to a portion of the military pension. Still others believe that service must be 10 consecutive years of service during marriage before the spouse is entitled to a division of the military pension. That such an award by the court is an OPTION and is at the discretion of the court. It would be a mistake to proceed with a divorce action on the assumption that a percentage of the pension salary will be definitively awarded – which is by no means guaranteed. Some misconceptions about the 10-year rule include: The military card and associated privileges are granted by the U.S. government, not the soldier`s spouse.

The representative of the service does not have the right to withdraw the identity card, because only the U.S. government has this authority. In certain circumstances, the Office of Basic Human Resources may issue an identification card without the member`s direct consent. Confusion about the 10/10 rule usually occurs when retired military personnel claim that the former spouse is only eligible for military pension benefits if the couple was married for 10 years, while serving 10 years in the military during the marriage. That is incorrect. The 10-year rule applies to the Defense Finance and Accounting Service (DFAS). The true 10-year rule is that for the non-military spouse to receive direct payment of DFAS soldier`s pension benefits after divorce, the couple must have been married for 10 years during the soldier`s military service. If you have been married to your spouse for at least 10 years and your spouse has served at least 10 years of qualifying military service during that period, you can receive your share of the shared military retirement pension directly from Defence Finance and Accounting (DFAS) instead of your former spouse. The court order to divide the military retreat must meet very specific requirements, otherwise DFAS will not process it. And note that while many lawyers may refer to the order as a QDRO, a military pension is not a qualifying pension under Section 401(a) of the Internal Revenue Code, so a QDRO is neither necessary nor sufficient. The law only allows for the division of “disposable retirement wages,” i.e.

the full military pension minus certain deductions. The VA disability benefit is not part of the military pension and, therefore, a court cannot divide it among divorced spouses, as it could divide bank accounts and IRAs, for example. Also excluded from the division are the Special Combat-Related Allowance (CSRC) and most Military Disability Awards. If a member receives one of these types of salaries, the former spouse`s portion of the military pension would be reduced. However, a court could award some of these types of compensation for child support, child support, or other types of family support (rather than treating it as a division of property between spouses). If the 10-year rule is not met, the military spouse must provide his or her share directly to the former spouse, which may be done by sending a cheque, setting up an allowance or automatic payment, or a similar method. Essentially, the 10-year rule exists, which allows MAFS to avoid managing small divisions of military pensions. It does not limit or define the share of the spouse`s pension that the spouse may receive; it simply specifies when the DFAS can pay this share directly to the spouse. As early as 1981, the U.S. Supreme Court ruled that former military spouses could not receive a share of the military pension under a divorce agreement. The rule only applies to the source of payment – a direct payment – to the spouse. Due to the 10/10 rule, the spouse receives pension-related payments directly from DFAS – the payment service provider of the U.S.

Department of Defense. Thus, the ex-spouse does not have to rely on military service payments in retirement and wait for payments. Yes, if the 10/10 rule (above) is respected and a disposable retirement salary must be shared. A corresponding order, which is submitted to DFAS with the required documents, is required. In practice, drafting and filing a military pension order is complex and is often best managed by an expert. The other method of direct payment is an “allowance,” which is a sum of money distributed as a payroll deduction from military personnel`s salaries. A former spouse would not prefer this method because it can be changed by the member without notice to the former spouse. The 10/10 rule, which is part of the USFSPA, is often misunderstood in its scope. Such a reservation – in cases where there has been a divorce by court decision issued before 26 June 1981, any modification of these orders must be made after 25 June 1981. June 1981 (again for court orders made prior to June 26, 1981) “which did not provide for the division of pension as property” inapplicable under the USFSPA.

One question is whether they will receive part of their spouse`s military pension. The simple answer is yes. Military annuities are matrimonial property accumulated during the marriage. In some cases, those involved in a military divorce cite the “10/10 rule” as a general and useful guide for granting military pensions. However, this rule is sometimes misinterpreted, which is confusing. No. The law is clear on that, and Congress has spoken. The Ex-Spousal Protection for Uniformed Service Act states that VA Disability Awards in the event of divorce are not subject to division of property. The same applies, to a large extent, to the pensions of military invalids.

Payments for the latter are made when a soldier is declared unfit for service. If one spouse has been married for at least 10 years and overlaps in military service, it does not matter whether those 10 years are all active, all reserve or a combination of both. DFAS reports that all relevant parts of the Law on Civilian Assistance to Military Personnel must be respected during state divorce court proceedings. The soldier is entitled to certain considerations when dividing the military pension into matrimonial property or joint property. The member has the right to: An unmarried former spouse may retain the military identification card if he or she complies with the 20/20/20 rule. The 20/20/20 rule requires at least twenty years of marriage, at least twenty years of military service, and at least twenty years of overlap between marriage and military service. Livesay & Myers` military divorce attorneys have years of experience in dividing military pension benefits and other issues unique to military divorce cases. From our five convenient offices, we represent clients throughout Northern Virginia. Contact us to schedule a consultation today.

Also note that the overlap between marriage and service must be at least 10 years. So if a couple has been married for 12 years, but only 8 of them were married while the member was in the military, the 10/10 rule is not respected. What is USFSPA doing about it? This is a federal law passed to recognize the right of state courts to “distribute military salaries to a spouse or ex-spouse,” according to the official DFAS website, and provides a way to legally enforce these court orders through the DoD. But it does NOT automatically allow an ex-spouse to receive a portion of the member`s retirement salary. Again, I can`t stress enough how to consult a lawyer if a divorce is in your future. Please keep in touch and let me know how you are. The same applies to judicial decisions rendered before 14 November 1986 in certain circumstances. DFAS believes that “if a portion of a member`s retired military salary is based on a disability award, the USFSPA orders are unenforceable.” Everything the 10/10 rule has to do with the provenance of your check – sent directly by DFAS or by your ex-spouse after receiving their monthly payment. It has nothing to do with you being entitled to a split of your pension salary. It is not easy to answer the question of how and where to divide a military pension – also known as the “military pension balance”. Where, for example, is filed is governed by federal law.

A State is responsible for the distribution of the military pension if: (1) the soldier is legally resident in the State; (2) the soldier is in that State for reasons other than military operations; or (3) the employee consents to the jurisdiction of the courts of that state to distribute the pension.