The so-called “10/10 Rule” (or 10-Year Rule) is a source of confusion for many individuals when dealing with a military divorce. Some believe it requires a couple to be married for 10 years before a spouse has a right to any portion of a servicemember’s military retirement. Others believe it requires the parties be married for ten years during active duty service before a spouse is entitled to any portion of military retirement. Still others believe that service must be for 10 consecutive years of service while married before a spouse earns a right to receive a division of military retired pay.
It may surprise you to learn that each of these beliefs is wrong.
The 10/10 Rule has nothing to do with a state court’s authority to treat military retired pay as a marital asset to be divided upon divorce. Even though it is part of the Uniformed Services Former Spouses’ Protection Act (which authorizes state courts to divide military retired pay as a marital asset), the 10-Year Rule only affects how the former spouse receives the share of military retired pay to which he or she is entitled pursuant to a divorce.
The first “10” of the 10/10 Rule requires a couple to have been married for at least ten years. The second “10” requires the military spouse to have served at least 10 years of service creditable towards retirement during the marriage. If both these conditions are met, then the Defense Finance and Accounting Services (DFAS) may directly pay a former spouse his or her share of military retired pay.
If the 10-Year Rule is not met, then the military spouse must provide the former spouse his or her share directly, which could be done by mailing a check, setting up an allotment or automatic payment, or some similar method.
Essentially, the 10-Year Rule exists to allow DFAS to avoid administering small divisions of military retired pay. It does not limit or define what share the spouse may receive from the servicemember’s retirement; it simply establishes when DFAS may pay that share directly to the spouse.
It is important to note that the dates used to measure qualification under the 10/10 Rule are different from those used in determining a former spouse’s actual share of military retirement. Virginia Code § 20-107.3 defines the marital share of assets such as military retirement as the portion that was earned from the date of marriage until the date of separation. The 10-Year Rule, however, simply requires for direct payment from DFAS that the parties were married at least 10 years during which the military spouse served at least 10 years. In other words, eligibility under the 10/10 Rule is measured from the date of marriage until the date the parties are divorced, not until the date the parties separate.
As a practical matter, it is often best for both parties if DFAS can administer the division of military retirement. The receiving spouse will have taxes and other deductions taken out by DFAS, and the military spouse will not have to write out a check every month.
The family lawyers at Livesay & Myers have years of experience in the division of military retired pay, and other issues unique to military divorce cases. We represent clients in Fredericksburg, Spotsylvania, Stafford, Manassas, Woodbridge, Prince William County, Alexandria, Arlington, Fairfax, and throughout Northern Virginia. Contact us to schedule a consultation today.