10/10 Retirement Division Rule
The 10/10 Rule is perhaps one of the most misunderstood concepts in military divorce law. The 10/10 Rule has nothing to do with whether a spouse can receive a service member’s military retirement. Each state’s property division rules dictate how retirement is divided in a divorce case. In general, military retirement is handled the same as any other retirement under the property division rules of most states.
Understand that in Tennessee, if a spouse is married to a military service member for ANY period of time during which the service member serves in the military and that service member later retires from the military, the spouse can be awarded a portion of the service member’s military retirement regardless of the length of the marriage.
Divorce Lawyers Who Know and Understand Military Retirement
As an example, consider the following: A couple gets married but soon discover they are not compatible and one of the two files for divorce after just two years. During that two year marriage, the husband is serving in the military. The wife would be entitled to a portion of the husband’s military retirement if and when the husband retires from the military, even though the marriage lasted only two years. If the husband serves twenty years and then retires, his former wife would likely receive the equivalent of ½ of the value of the retirement applicable to the length of the marriage based on husband's rank at the time of the divorce.
In our example, the husband served for twenty years. During that twenty years, he was married to the wife for two years. The two-year marriage is 2/20 of the total period of time during which the husband served in the military. The wife would be entitled to ½ the two year period or the equivalent of 1/20 of the husband’s military retirement pay. If after twenty years of military service, and based upon the retired pay for a service member at husband's rank at the time of the divorce, the husband would receive, at that rank, $2,500.00 per month in gross retirement pay. The wife would be entitled to $125.00 per month. The $125.00 represents her 1/20 share of his total gross retirement pay based on husband's rank at the time of the divorce. $125.00 per month might not seem like a lot, but consider if the husband joined the military at 21, served until his retirement at age 41, then lived to be 86 years old. In that case the $125.00 per month totals $1,500.00 per year or $67,500.00 over the husband’s lifetime. Not something to necessarily walk away from if you are the spouse and not something to give away easily if you are the service member. In our example, the husband would be required to pay the $125.00 per month directly to the wife because the parties did not meet the requirements of the 10/10 Rule.
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An Explanation of the 10/10 Rule in Military Divorce
There are two requirements for what is commonly referred to as the 10/10 Rule in military divorce cases. First, the parties must be married for at least ten years. Second, the military service member must have at least ten years of military service creditable toward retirement during the marriage. If both of those conditions are met, the ex-spouse of a military service member would be entitled to have whatever amount of military retirement they were awarded, paid directly from the military through the Defense Finance and Accounting Service (DFAS). In other words, the ex-spouse receiving the service member's retirement would not have to rely upon the retired service member to pay the money, but would instead receive the money directly from DFAS.
This can be a big deal in situations where the retired service member does not want to voluntarily pay. In cases where to 10/10 Rule is not met, the service member's ex-spouse must rely upon the retired service member to pay her directly. If the retired service member does not pay, the ex-spouse might have to expend considerable sums to go back to court to force the retired service member to pay. Direct payments from DFAS can also be an advantage to the retired service member. It is much easier and much less painful to have DFAS cut the check directly to an ex-spouse than to have to write it out, sign it and drop it in the mail every month.
Remember, the 10/10 Rule has nothing to do with a Tennessee court’s authority to treat military retired pay as a marital asset to be divided upon divorce. Although the 10 Year Rule is part of the Uniformed Services Former Spouses’ Protection, the rule only affects the manner in which the former spouse receives the share of military retired pay and not whether they are entitled to receive such pay.
In essence, the 10-Year Rule was put in place to allow DFAS to avoid the administrative burden of keeping up with and paying out small divisions of military retired pay. It does not set forth what share if any, the ex-spouse may receive from the military service member's retirement, but only establishes when DFAS is authorized to pay that share directly to the spouse. It is important to note that both the dates used to measure qualification under the 10/10 Rule are the same as those used in determining a former spouse’s actual share of military retirement. Both Tennessee’s property division rules and the 10-Year Rule are measured from the date of marriage until the date the parties are divorced, NOT the date of the parties separation.
Tennessee Attorneys Experienced in Military Retirement Law
At Richter Family Law Group, P.C., we have experience dealing with military retirement law. We are experienced in negotiating the division of military retirement and we know and understand the complexities involved in dealing with DFAS and the requirements for obtaining the approval by DFAS of retirement division orders.