Would an Ex Military Spouse Qualify for a Percentage of Military Retirement in a Divorce?

by Patrice D. Wimbush ; Updated July 27, 2017
Military retirement falls under marital property in a divorce.

In 1982, Congress approved the Uniformed Services Former Spouses’ Protection Act, also known as USFSPA, giving states the authority to divide military retirement compensation between spouses. The USFSPA benefits the service member by ensuring the requirements of the Servicemembers Civil Relief Act, commonly called SCRA, are met before the division of retirement pay. Former spouses are provided with a means of enforcing a spousal or child support order for payment.

Servicemembers Civil Relief Act

Congress approved the Servicemembers Civil Relief Act in 2003. SCRA replaced the previous Soldiers’ and Sailors’ Civil Relief Act and modified provisions present in the older act. The stipulation of SCRA applied to USFSPA prevents the rendering of default decisions against service members who cannot appear in court due to military service. When a service member fails to appear in court, the plaintiff or filing spouse must inform the court of the service member’s military status via an affidavit. The court cannot enter a judgment without appointing an attorney to represent the service member’s interest.

Marital Requirements

You must be married to the service member for 10 years or longer to request direct payment from the Defense Finance and Accounting Service, known as DFAS. Your spouse must have at least 10 years of credible service that counts towards retirement. This is known as the 10/10 rule. Spouses may receive up to 50 percent of the military member’s disposable retirement pay.

Court Jurisdiction

Courts cannot divide military retirement without jurisdiction. According to USFSPA guidelines, courts obtain jurisdiction in three ways. The service member can give the court consent, which is the more common method of gaining jurisdiction. The petitioning spouse can file in the service member’s state of residency or state of domicile. Defining domicile and residency is tricky because they are often used interchangeably. Domicile and residency are generally established by registering to vote, paying state taxes, or owning property in a particular state. To alleviate confusion, the responsibility of determining domicile lies with the courts.

Dispelling the Myth

Many divorce attorneys mistakenly believe that the division of military retirement only occurs when the couples have been married for 10 years or longer. The 10/10 rule only applies to your right to receive direct payments, not your right to receive a portion of your spouse’s retirement. Direct payment means your payment is mailed or directly deposited from DFAS. There is no set amount of time you must be married. If the duration of your marriage is less than 10 years, and the court awards you a portion of your spouse’s retirement, the payment must come directly from your spouse. The does not apply to spousal or child support payments.

About the Author

Residing in Clarksville, Tenn., Patrice D. Wimbush has been writing since 2002, with her work appearing on various websites. Her areas of writing expertise are contract and criminal law. She holds a Master of Public Administration from Murray State University and a Master of Arts in communication from Austin Peay State University.

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