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The 10/10 Rule in Military Retirement
“If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and his spouse.” 10 U.S.C. § 1408(d)(2)
• Were the parties married for at least 10 years during which the service member served at least 10 years? If no, STOP.
If you answered “no” to any of the three questions, DFAS will not honor a court order to pay the former spouse’s portion directly.
Myths of the 10/10 Rule in Military Retirement
Let’s explore a couple of myths that have arisen as a result of misunderstanding the 10/10 rule.
The 10/10 Checklist
Myth No. 1: If the parties don’t satisfy the 10/10 rule, the court cannot award the former spouse a portion of the military retirement.
This statute establishes what is known as the 10/10 rule. In order for the Defense Finance and Accounting Services (DFAS) to pay the former spouse’s portion directly to the former spouse, the service member must have served at least 10 years, during which time of service the parties must have been married for at least 10 years.
False. As with all marital assets, the divorce court has the exclusive right to divide military retirement. The 10/10 rule only applies to the obligation of DFAS to pay the former spouse’s portion directly to the former spouse. If the court awards a portion of military retirement to a former spouse that does not satisfy the 10/10 rule, the former spouse can still enforce the award in numerous ways. For example, the Texas Family Code section 9.011 creates a fiduciary duty on the service member in favor of the former spouse. The section also imposes a constructive trust on each payment the service member receives.
Here’s a simple checklist to determine whether the 10/10 rule has been satisfied:
• Were the parties married for at least 10 years? If no, STOP.
Myth No. 2: If the parties don’t satisfy the 10/10 rule, the court cannot award the former spouse survivor benefit.
• Did the service member serve at least 10 years? If no, STOP.
False. The service member may elect to cover the former spouse pursuant to the Survivor’s Benefit Plan (SBP). The 10/10 rule does not apply to the election of SBP coverage for the former spouse.
More significantly, the court can order the service member to elect the spouse for SBP coverage even if the marriage does not satisfy the 10/10 rule.
Most significantly, the former spouse can file a form with DFAS that acts as a “deemed election” even if the service member does not make the election directly.
The correct form to file with DFAS is the DD 2656-10 form. The form must be filed within one year after the court first awards the survivor benefit to the former spouse.
–Judge Stephen Hernsberger
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