Military Divorce

The short version

Military divorce involves special rules because one spouse is a service member. These rules mostly affect how military retirement pay can be divided and how health care benefits might continue. Understanding these unique laws is important so you know your rights regarding military benefits during and after a divorce.

The law this is built on

Every point below comes from the authority named next to it. Verify the current text before relying on it.

10 U.S.C. § 1408(a)(2)(A)
This section defines 'court order' to include a final decree of divorce, dissolution, annulment, or legal separation, or a court-ordered property settlement, that provides for payments of military retired pay.
Why it matters: This means that state courts can issue orders that divide military retirement pay between spouses.
10 U.S.C. § 1408(c)(1)
This section states that a court may treat military retired pay, either as property solely of the service member or as property of the service member and his spouse in accordance with the law of the jurisdiction of such court.
Why it matters: This allows state courts to divide military retirement pay as marital property, based on state law.
10 U.S.C. § 1408(d)(1)
This section permits the Secretary of Defense to make direct payments from a service member's retired pay to a former spouse if the service member has been married to the former spouse for 10 years or more during which the service member performed at least 10 years of creditable service.
Why it matters: This is the '10/10 rule' for direct payment. If you meet these conditions, the Department of Defense can send your share of retirement pay directly to you, rather than the service member having to pay you.

Words you need to know

Uniformed Services Former Spouses' Protection Act (USFSPA): This federal law, found at 10 U.S.C. § 1408, allows state courts to divide military retired pay as property in a divorce. It also lets the Department of Defense make direct payments of retired pay to a former spouse under certain conditions.
10/10 Rule: This refers to the requirement in 10 U.S.C. § 1408(d)(1) that for the Department of Defense to directly pay a share of military retired pay to a former spouse, the marriage must have lasted at least 10 years, and the service member must have performed at least 10 years of creditable military service during that marriage. This rule is for direct payment only, not for whether retired pay can be divided at all.
20/20/20 Rule: If you were married to a service member for at least 20 years, the service member performed at least 20 years of creditable service, and there were at least 20 years of overlap between the marriage and the service, you may be eligible for continued military health care (TRICARE) and commissary/exchange privileges after the divorce. This is not codified in 10 U.S.C. § 1408 but is a common military benefit consideration.
Disposable Retired Pay: This is the portion of military retired pay that can be divided by a state court under 10 U.S.C. § 1408(a)(4). It excludes certain amounts like disability pay or amounts waived to receive VA disability compensation.
Jurisdiction: This refers to which court has the legal power to hear a divorce case. For military divorces, this can be complex because service members often move. States generally require one party to live in the state for a certain period before a court can hear the case.

Your rights

✓You have the right to seek a portion of your service member spouse's military retired pay in your divorce, according to state law (10 U.S.C. § 1408(c)(1)).
✓If you meet the 10/10 rule (10 years of marriage overlapping with 10 years of service), you have the right to have your share of retired pay sent directly to you by the Department of Defense (10 U.S.C. § 1408(d)(1)).
✓You may have the right to continue receiving military healthcare benefits (TRICARE) after divorce, depending on the length of your marriage and your spouse's service (often the 20/20/20 or 20/20/15 rules).
✓You can seek child support and spousal support (alimony) from your service member spouse, just like in a civilian divorce, though military pay can make calculations unique.
✓You have the right to ensure your divorce decree is properly drafted to be enforceable by military finance centers for direct payments.

How the process actually works

1
File for Divorce
Varies by state
One spouse files divorce papers in a state court that has jurisdiction. This court will handle all aspects of the divorce, including property division, child custody, and support.
2
Determine Jurisdiction
At the start of the divorce process
Because service members move frequently, deciding which state's court has the power to hear the divorce case can be tricky. Usually, one party must reside in the state for a set time.
3
Identify Marital Property
During the discovery phase of the divorce
This includes all assets and debts acquired during the marriage. For military divorces, this specifically includes military retired pay, which is considered marital property in most states (10 U.S.C. § 1408(c)(1)).
4
Divide Military Retired Pay
As part of the final divorce decree
The court will decide how much of the 'disposable retired pay' you are entitled to, based on state law. This is usually a percentage of the pay that was earned during the marriage.
5
Draft the Divorce Order
At the conclusion of the divorce proceedings
The final divorce order must be specific and meet the requirements of the Uniformed Services Former Spouses' Protection Act (USFSPA) to allow direct payments and for other military benefits to be correctly recognized.
6
Apply for Direct Payments/Benefits
After the divorce is final
If your order grants you a share of retired pay and you meet the 10/10 rule, you or your attorney must submit the certified court order to the Defense Finance and Accounting Service (DFAS) to receive direct payments. You would also apply for healthcare or other benefits through the appropriate military channels.

Deadlines that can end your case

Submitting Court Order to DFAS for Direct Payments
There is no strict deadline, but delays mean you won't receive your share of retired pay until the order is processed.
If you wait too long, you might have to try and collect the payments directly from your former spouse for the missed period, which can be difficult.
Applying for TRICARE/Other Benefits
Within 1 year of the divorce decree for immediate re-enrollment for certain benefits; other benefits may have different windows.
Missing deadlines can lead to a lapse in coverage or loss of eligibility for certain benefits, like health care.

Costly mistakes

✕Not understanding that military retired pay is divisible, even if the service member is not yet retired (10 U.S.C. § 1408(c)(1)).
✕Assuming the '10/10 rule' means you cannot get any retired pay if you don't meet it; it only affects direct payments, not your right to a share.
✕Drafting a divorce order that is not specific enough for DFAS to process direct payments or other benefits.
✕Failing to consider the tax implications of receiving a portion of military retired pay or other benefits.
✕Not properly serving the service member spouse, especially if they are deployed or overseas, which can lead to delays or dismissal of the case.
✕Not understanding how federal law (like USFSPA) interacts with your state's divorce laws, leading to errors in property division.

Your checklist

Determine which state has jurisdiction for your divorce case, considering residency requirements.
Gather financial documents, including service member's Leave and Earnings Statements (LES) and retirement benefit statements.
Understand the 'disposable retired pay' calculation and how it impacts the portion you may receive (10 U.S.C. § 1408(a)(4)).
Verify if you meet the 10/10, 20/20/15, or 20/20/20 rules for direct payments and continued benefits.
Ensure your divorce decree precisely outlines the division of military retired pay and addresses healthcare benefits.
After the divorce, submit the certified court order to DFAS for direct payments, if applicable.
Apply for any eligible military benefits, such as TRICARE, with the appropriate agencies.

Common questions

Can a state court divide military retirement pay?

Yes, 10 U.S.C. § 1408(c)(1) explicitly allows state courts to treat military retired pay as marital property in accordance with state law. The court will determine the portion that can be divided as 'disposable retired pay'.

What is the '10/10 rule' for military divorce?

The '10/10 rule' from 10 U.S.C. § 1408(d)(1) states that for the Department of Defense to make direct payments of retired pay to a former spouse, the marriage must have lasted at least 10 years, and the service member performed at least 10 years of creditable service during that marriage. This rule is only for direct payment by DFAS, not whether the pay can be divided by a court.

Can I keep my military health care after a divorce?

You may be able to, depending on the length of your marriage and your spouse's military service. The '20/20/20' rule allows full TRICARE benefits if you were married for 20+ years, the service member served 20+ years, and there was 20+ years of overlap. Other rules (like '20/20/15') may offer transitional benefits. This is not directly in 10 U.S.C. § 1408 but is a key military divorce benefit.

What if my spouse is deployed during the divorce?

If your spouse is deployed, special rules under the Servicemembers Civil Relief Act (SCRA) may apply. These rules can temporarily delay court proceedings to protect the service member's rights. You still need to properly serve them with divorce papers.

Does military disability pay count for divorce property division?

No, military disability pay is generally not considered 'disposable retired pay' under 10 U.S.C. § 1408(a)(4) and cannot be divided by state courts. If a service member waives retired pay to receive VA disability compensation, that waived amount also cannot be divided.

How this changes by state

The Uniformed Services Former Spouses' Protection Act (USFSPA) gives state courts the power to divide military retired pay, but it's important to know that each state has its own laws about how marital property is divided. Some states are 'community property' states, meaning marital property is split equally, while others are 'equitable distribution' states, where property is divided fairly, but not necessarily equally. Child support and spousal support rules also vary by state. You need to look up your specific state's family law statutes to understand how these factors will apply in your case.

When you need a lawyer

You should get a lawyer when dealing with a military divorce if there are complex assets, disagreements over child custody or support, or if your spouse is uncooperative. A lawyer experienced in military divorce can help you understand how federal and state laws interact, ensure your divorce decree is properly written for direct payments from DFAS, and protect your rights regarding military benefits.

Do this today

→Consult with a family law attorney who specializes in military divorce in your state.
→Gather all financial documents related to your marriage and your spouse's military service.
→Research your state's specific laws on property division and support in divorce cases.

This lesson is legal information for educational purposes only, based on 10 U.S.C. § 1408 (USFSPA). It is not legal advice and does not create an attorney-client relationship.