This is the second in a series of articles on dividing military pensions. You can read the first article on the basics of military retirement pay division on a divorce here. Want to stay updated on our latest articles? Subscribe and become a site member, it's free!
The 10/10 rule refers to when a couple has been married for at least 10 years and at least ten of those years overlap with military service. The 10/10 rule was established by the Uniformed Services Former Spouses’ Protection Act (USFSPA), Title 10, United States Code, Section 1408, passed in 1981. Essentially, USFSPA, through the 10/10 rule, provides a mechanism for a former spouse to enforce an award of retired pay through direct payments from the member’s retired pay. Said another way, under the 10/10 rule, the former spouse must have been:
Married to the member for 10 years or more AND
10 years of the marriage must overlap with the service member's credible time towards retirement.
When this is the case, the former spouse then qualifies for direct payments (similar to a garnishment) of retired pay from DFAS.
An election for direct payments by a former spouse cannot be waived by the member.
Note: The 10/10 requirement does not apply to the enforcement of alimony or child support. Retired pay arrears cannot be collected under the USFSPA. For more on enforcing child support and alimony orders click here.
There is sometimes a misconception that the 10/10 rule automatically entitles a former spouse to a portion of the retirees' retired pay. This is false. There is no federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must have been awarded a portion of a member’s military retired pay in a state court order. Read more about dividing retirement pay here.
If the 10/10 rule's requirements are not met it does not mean that a former spouse isn't entitled to a portion of retirement pay. It also doesn't make an award of retirement pay award invalid. It only means only that an award of retirement pay it cannot be enforced by direct payments from DFAS under the USFSPA. The former spouse must get their share of retirement pay directly from the retired spouse.
Under the 10/10 rule: Former spouse gets a check for their share of the retirement pay directly from DFAS
Without the 10/10 rule: The retiree receives the full amount of their retired pay and then must pay their former spouse their share of the retired pay
Jurisdiction:
In order for a state court to be allowed to divide member's retired pay, the court doing the dividing must have proper jurisdiction. When the former spouse asserts the 10/10 rule, DFAS will want it to be clear that the jurisdictional requirements are met. This should be spelled out in your divorce decree (or other document awarding the retirement pay), but if it isn't you may be required to provide additional documentation to prove jurisdictional requirements were met.
The requirements for DFAS to enforce the court order is that the state court awarding the retirement pay had jurisdiction over the service member by reason of:
The member's residence in the territorial jurisdiction of the court (other than because of military assignment); or
The member's domicile in the territorial jurisdiction of the court, or
The member's consent to the jurisdiction of the court; or
The member indicates his or her consent to the court’s jurisdiction by taking some affirmative action in the legal proceeding.
For example, if Lt Johnson is stationed in Virginia but claims Ohio as his legal domicile/ residence and if his spouse files for divorce in Virginia, the court would not be allowed to divide John's military retired pay unless Lt Johnson consents to the jurisdiction of the court.
Maximum Payments:
USFSPA directs that there is a maximum amount of retirement pay that can automatically allocated from a retiree's pay. Retirement allocations cannot exceed 50 percent of the member’s disposable income. If the former spouse also has awards for alimony or child support under 42 U.S.C. § 659 (income withholding order) in addition to division of retired pay, then the payments can not exceed 65% of the disposable retired pay.
If your divorce decree states that the former spouse gets a percentage of the retired pay, then DFAS will calculate pay either that amount OR 50% (or 65%), whichever is less. If the former spouse gets a percentage of the retired pay, they will also get a the same share of the member’s cost-of-living adjustments (COLAs), (this is not true when the retirement division is for a fixed dollar amount awards, even if COLAs were awarded in the court order).
How do I start automatic payments under the 10/10 rule?
In order to apply for direct payments under the USFSPA, a former spouse must submit an application to DFAS requesting for payments to begin. The application requires:
A completed an Application for Former Spouse Payments from Retired Pay (DD Form 2293, linked and below),
A court order documenting the award or awards that has been certified by the clerk of court. A photocopy of the certified order is acceptable. This MUST contain the retiree's social security number or the application won't be processed!
Return Phone Number
Return Fax Number
The former spouse may have to submit additional documentation for DFAS to determine whether all requirements, such as 10/10 or jurisdiction rules, were met.
This same application form can be used to enforce multiple orders, not just for retirement pay under the 10/10 rule, but also child support and alimony rules under a garnishment order (read more here). If you are doing this, you must state which awards you are seeking to enforce under USFSPA (i.e., alimony, child support, and/or division of retired pay as property). If the application does not contain this information, then only awards of retired pay as property will be enforced under the USFSPA. A former spouse should also indicate the priority of the awards to be enforced in case there is not sufficient disposable retired pay to cover multiple awards.
The application must be sent to Garnishment Law Directorate at DFAS. The application may be faxed to 877-622-5930 (toll-free) or sent by regular mail to:
DFAS-HGA/CL Assistant General Counsel for Garnishment Law Directorate P.O. Box 998002 Cleveland, OH 44199-8002.
For more/ the latest information on this check DFAS' website, here.
What happens after the application is submitted?
After receiving the application, DFAS has 90 days to process it. During this time, they will provide the retiree with a legally required notice, which allows the retiree to challenge the allotment within 30 days. No payments can be made until after the 30 day notice period ends. Once this is complete, the first payment would occur at the next standard payment time (military retired pay is paid at month-end).
If a member hasn't retired yet when DFAS approves the former spouse’s application, the application will stay on file for when the member does retire. The USFSPA requires that DFAS begin former spouse payments within 90 days of the member retiring.
When do payments start?
Payments under the 10/10 rule will not start until after the service member actually retires. If the member is already eligible to receive retired pay, the USFSPA requires that former spouse payments begin not later than 90 days after DFAS receives a complete application for payments which satisfies all the requirements of the USFSPA.
When will payment stop?
Payments will stop under USFSPA when the retiree dies UNLESS the former spouse was awarded the Survivor Benefit Plan (SBP). Payments will also stop if the former spouse dies. Former spouse payments cannot be passed on under a will when a former spouse dies. If former spouse payments stop due to the death of the former spouse, those funds will revert back to the retiree's pay.
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