Military divorce screener

Legal information only. Military divorce law involves complex federal-state interactions. An attorney with specific military divorce experience is essential. See our full disclaimer.

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Military divorce requires an attorney who knows USFSPA, the 10/10 rule, SBP elections, and VA disability offset rules. The wrong attorney on a military pension case can cost a spouse hundreds of thousands of dollars. Free consultation.

How the 10/10 rule affects military pension division

Under the Uniformed Services Former Spouses Protection Act (USFSPA), state courts can treat military retired pay as marital property subject to division. However, the Defense Finance and Accounting Service (DFAS) will only pay the former spouse directly if the marriage overlapped with at least 10 years of creditable military service - this is the "10/10 rule." If the overlap is less than 10 years, the state court can still award the former spouse a portion of the pension, but the service member must make those payments personally rather than through direct DFAS payment.

The pension division itself uses a "coverture fraction" - the percentage of the service member's military service that occurred during the marriage, multiplied by the retirement pay. For example, if a service member served 20 years and was married for 15 of those years, the marital portion is 75% of the retired pay. Courts divide that marital portion between the spouses. This calculation is done in the divorce decree using a formula that DFAS will honor. For the broader divorce settlement picture, use the divorce settlement calculator alongside this military-specific analysis.

What is the Survivor Benefit Plan and why must it be addressed at divorce?

The Survivor Benefit Plan (SBP) provides a monthly annuity (up to 55% of the retiree's pension) to a designated beneficiary after the service member's death. At divorce, the SBP beneficiary designation does not automatically change - but the former spouse can be named as the SBP beneficiary in the divorce decree. This must be done at divorce - there is a one-year window after the divorce becomes final to elect former spouse SBP coverage, and after that window closes, it cannot be elected again regardless of what the divorce decree says. Former spouses who don't address SBP at divorce often discover years later that they have no survivor benefit despite having a right to the pension.

Is VA disability compensation divisible in a divorce?

No. VA disability compensation is explicitly excluded from division as marital property by federal law (the Uniformed Services Former Spouses Protection Act). A state court cannot award a former spouse any portion of VA disability pay directly. However, when a service member waives a portion of retirement pay to receive VA disability compensation (which is tax-free) in an equal dollar amount, the former spouse's share of retirement pay is effectively reduced. Some state courts have attempted to compensate former spouses for this "double-dipping" through adjustments to other marital assets or support awards, but the approaches vary by state and are subject to federal preemption challenges.

Frequently asked questions about military divorce

Under the 20/20/20 rule, a former spouse who was married to a service member for at least 20 years, during which the service member performed at least 20 years of creditable service, and with at least 20 years of overlap between the marriage and service, qualifies for full TRICARE benefits after divorce - the same coverage as an active military dependent. Under the 20/20/15 rule (20 years of marriage, 20 years of service, 15 years of overlap), the former spouse gets 1 year of TRICARE transitional coverage. Below these thresholds, TRICARE continuation through the Continued Health Care Benefit Program (CHCBP) is available for up to 3 years at full cost (similar to COBRA).

Military custody agreements must address deployment scenarios explicitly. Most states have enacted the Uniform Deployed Parents Custody and Visitation Act or similar legislation requiring courts to accommodate military service in custody orders. A well-drafted military parenting plan specifies: what happens to the service member's parenting time during deployment (often transferred to a family member or the service member's new spouse rather than the other parent automatically getting additional time), how communication is maintained during deployment, and how the schedule returns to normal after the service member returns. Courts generally protect the service member's custody rights from being permanently modified solely due to deployment.

The SCRA allows an active duty service member to request a stay (postponement) of civil proceedings including divorce proceedings when military duty materially affects their ability to participate. An initial stay of at least 90 days must be granted upon request, and additional stays may be granted at the court's discretion. The SCRA also provides default judgment protections - a default divorce obtained while the service member is deployed and cannot respond may be set aside. These protections apply to the service member only - not the spouse filing for divorce against the service member. The SCRA can significantly delay a divorce initiated by a civilian spouse against a deployed service member.

Military personnel and their spouses can typically file for divorce in the state where they are stationed, the state of the service member's legal domicile (home of record), or the state where the civilian spouse resides. The choice of state matters because state law governs property division, alimony, and child custody - even though federal law governs the pension. Choosing the most favorable state for your particular circumstances (community property vs. equitable distribution, alimony rules, etc.) is an important strategic decision in military divorce that an attorney with multi-state experience addresses.

BAH treatment varies by state. Many states include BAH as income for child support and alimony calculation purposes because it represents actual economic benefit to the service member, even though it's not technically taxable income. Other states treat BAH differently or exclude it. For service members, this means their total compensation for support purposes (base pay + BAH + BAS + special pays) can be significantly higher than their base pay alone - which increases support obligations. The military pay structure with its various allowances requires careful analysis to ensure accurate income figures are used in support calculations.