Understanding the Rights, Benefits, and Legal Protections Available to Military Spouses During Divorce, From Military Divorce Lawyers
Military divorces are rarely straightforward. Because military life presents its own unique challenges, including frequent moves, deployments, and the blending of state and federal laws, this can make separating assets, determining support, and protecting benefits far more complex than in a civilian divorce.
If you are a military spouse navigating divorce, understanding what you are entitled to is essential for ensuring you receive fair treatment under the law.
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How Federal and State Laws Intersect in Military Divorces
Military divorces operate within two overlapping systems: federal law and state law. Each governs different parts of the process, which can add many additional considerations to a divorce case. Federal laws, such as the Uniformed Services Former Spouses’ Protection Act (USFSPA), establish nationwide standards for dividing military pay and benefits, while state law governs property, custody, and support.
Due to this unique intersection of state and federal law, a military divorce will require careful coordination with both systems. Working with an experienced military divorce lawyer familiar with these overlapping frameworks helps ensure that a military spouse’s rights are fully protected and that no federal or state entitlement is overlooked.
Division of Military Retirement Benefits
One of the most significant financial considerations that will affect a military spouse is the division of the service member’s retirement pay. Under the USFSPA, state courts may treat military pensions as marital property, allowing for equitable division between spouses. However, the USFSPA doesn’t dictate how much a former spouse should receive. This decision is made by the state court.
Each state follows either equitable distribution (focused on fairness) or community property (focused on equality) principles. The portion of retirement pay that a former spouse can receive largely depends on the length of the marriage and how much of the service member’s career occurred during the marriage. It helps to have a military divorce attorney to help navigate these benefit divisions.
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Understanding the 10/10 Rule
When it comes to dividing military retirement pay, one of the most misunderstood concepts is the 10/10 rule. This rule doesn’t determine the military spouse’s eligibility for a portion of military retirement. Instead, it addresses how that payment must be made.
Under the USFSPA, the 10/10 rule applies when determining whether the Defense Finance and Accounting Service (DFAS), the federal agency responsible for paying military service members, can send these payments directly to the spouse.
For a military spouse to qualify for direct payment from DFAS:
- The couple must have been married for at least 10 years.
- The service member must have completed at least 10 years of credible military service.
- There must be at least a 10-year overlap between the marriage and the service.
If all three conditions are met, DFAS can issue payments directly to the former military spouse. This ensures timely payments and eliminates the need for the former spouse to rely on the service member for payment.
If the 10/10 requirement is not met, this doesn’t mean the former spouse is ineligible to receive a share of the retirement, but the service member will be responsible for making those payments directly. In such cases, it is crucial to have clear and enforceable language in the divorce decree outlining how and when payments will be made. Consult with a trusted military divorce lawyer to build enforceable language.
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Division of Other Marital Property
While military retirement benefits are one of the most discussed assets in a military divorce, they are only one part of the couple’s overall financial picture. Like any divorce, a couple’s marital property, or everything acquired during the marriage, must be divided fairly between both parties. This is done according to the laws of the state where the divorce is filed.
How Property Division Can Differ in a Military Divorce
Although the basic framework for dividing property in a military divorce is similar to civilian divorce cases, some unique factors can make military divorces more complex:
- Jurisdiction across multiple states – Because military families often relocate, they may own property or have accounts in several different states, making jurisdiction determination a complex issue.
- Military pay and allowances – Military members not only receive base pay but also a variety of allowances. While these are generally considered income for purposes of determining child and spousal support, they are not considered divisible assets.
- Military retirement and deferred benefits – Because military retirement benefits are deferred income, they are treated differently than ordinary savings or 401(k) accounts.
- Non-financial contributions and sacrifices – Courts often consider the sacrifices made by military spouses when dividing assets to ensure fairness.
- Unique assets and entitlements – Certain benefits like commissary privileges or education assistance are valuable but not divisible in divorce; however, they can affect settlement negotiations.
Survivor Benefits Plan (SBP) Rights
The Survivor Benefit Plan (SBP) is a federally regulated benefit that provides a designated beneficiary with continued income after a service member’s death. To preserve these rights post-divorce, the decree must name the former spouse as the SBP beneficiary, and the request must be submitted to DFAS within one year of the divorce.
Health Care and Commissary Benefits
Access to TRICARE and base privileges depend on marriage duration and overlap with service.
The 20/20/20 Rule
- Marriage lasted 20 years
- Service member completed 20 years of service
- Marriage and service overlapped for 20+ years
This rule grants lifetime TRICARE and base privileges unless the former spouse remarries.
The 20/20/15 Rule
With 15–20 years of overlap, the former spouse gets one year of transitional TRICARE coverage.
Continued Health Care Benefit Program (CHCBP)
If not eligible for TRICARE, a spouse may qualify for CHCBP, providing up to 36 months of coverage post-divorce.
Child Support
Under federal law, service members must support dependents, and each branch has interim support rules. State child support guidelines apply through the Uniform Interstate Family Support Act (UIFSA).
Spousal Support (Alimony)
Spousal support is governed by state law but often reflects military-related sacrifices, especially when frequent relocations have impacted the spouse’s career or earning potential.
Child Custody and Visitation in Military Families
Custody decisions are based on the child’s best interests, considering military duties. Federal law like the Servicemember Civil Relief Act (SCRA) protects service members from losing custody due to deployment. States often allow temporary custody changes during deployments to preserve parental rights.
Frequently Asked Questions
1. Does military service affect how quickly a divorce can be finalized?
Yes. The SCRA allows active-duty members to delay proceedings if service prevents participation, ensuring fairness.
2. Can a military spouse receive both spousal support and a share of retirement benefits?
Yes, because spousal support and retirement benefits serve different purposes — income maintenance versus marital asset division.
3. What happens if a service member doesn’t comply with a court order?
Noncompliance can lead to wage garnishment or Uniform Code of Military Justice (UCMJ) action. Commanders may order involuntary allotments to cover arrears.
Protecting a Military Spouse’s Rights
Military spouses make significant sacrifices, and those efforts deserve fair protection during divorce. Understanding how federal and state laws interact is key to safeguarding benefits and financial stability.
At Melone Hatley, P.C., our attorneys and military divorce lawyers help military spouses navigate these complex cases with compassion and precision. Call 1-800-479-8124 or contact us online to schedule a free consultation with one of our Client Services Coordinators.
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