Like in any community, rumors and half-truths are common in the military. An area where this is especially true is with the entitlement to retired pay and benefits as part of a divorce. A practitioner with a divorce client from the military will likely face inaccurate assumptions from their clients when retirement pay is at issue.
First, the non-military spouse is NOT automatically entitled to a portion of their military spouse’s retirement pension by virtue of their marriage to the military member. The precise entitlement or non-entitlement to retired pay is left to the determination of individual State courts.
The Defense Finance and Accounting Service (DFAS) is responsible for making pension payments to eligible retirees. DFAS will also make pension garnishment payments to former spouses after receiving a properly drafted, final State court order or modification…provided that the former spouse was married to the military member for at least 10 years, at least 10 years of which must have been while the member was serving (the 10/10 rule).
Second, the 10/10 rule does NOT mean that a former spouse must have 10 years of marriage to be entitled to a portion of a former spouse’s pension. Again, a State court decides entitlement to a division of retirement pay (subject only to restrictions defining “disposable retirement pay” under 10 U.S.C. §1408.) If a former spouse doesn’t meet the 10/10 rule, this only means the retired military member must cut a check directly to the former spouse if a court orders it. The DFAS website has an extensive FAQ section on division of retired pay, including proposed court orders and common pitfalls to avoid, available at https://www.dfas.mil/garnishment/usfspa/faqs.html.
Third, former military spouses are entitled to post-divorce military benefits such as health care only under limited circumstances. If a former spouse was married to the same military member for 20 years, the military member served at least 20 years, and the marriage overlapped with at least 20 years of the military member’s service, the former spouse is entitled to full health benefits (TRICARE) and base access and privileges following the divorce (the 20/20/20 rule). If the marriage only overlapped with 15 years of the military member’s service, the former spouse will receive only 1 year of TRICARE benefits following the divorce. Notably, a when a former spouse remarries, entitlement to any benefits ceases. Of course, minor children of a military member retain their benefits and entitlements independent of a divorce decree.
Finally, a military retiree’s Veterans Administration (VA) disability compensation is NOT completely off limits for a former spouse. This often comes up when a military retiree invokes the general rule that VA disability compensation is not subject to division through divorce. See 10 U.S.C. 1408(a)(4)(b). The military member leverages this rule by waiving receipt of a portion of their military pension in the same dollar amount they receive disability pay from the VA. The VA requires this waiver to avoid retiree “double-dipping” in both retirement pay and disability compensation.
One way creative attorneys address this problem is an “indemnification agreement” in settlement that requires the military member to reimburse the former spouse half of each dollar he waives in retirement pay and receives in VA disability pay.
Also of note concerning VA disability pay, it is subject to garnishment for both alimony and child custody payments under 42 U.S.C. § 659(h)(1)(A)(ii)(V). If a former spouse cannot secure an indemnification agreement as part of a settlement, this may strengthen an argument for court-ordered alimony that can then be drawn from VA disability pay.