“We weren’t married for ten years, so you don’t get any of my military retirement.”
That is incorrect. A spouse can still be entitled to the community-property portion of military retirement when the marriage lasted fewer than ten years.
The difference is who sends the payment. If the marriage does not meet the military’s 10/10 requirement, the Defense Finance and Accounting Service—DFAS—generally cannot pay the retirement property award directly to the former spouse. The servicemember must pay the share awarded in the divorce judgment.
Understanding that distinction can prevent a costly mistake. The ten-year rule concerns direct payment. It does not erase retirement rights earned during marriage.
The Uniformed Services Former Spouses’ Protection Act allows qualifying retirement property awards to be paid directly through the military pay system.
The 10/10 requirement generally means:
The overlap matters. A twenty-year military career and a ten-year marriage do not qualify if only five years overlapped.
For example, suppose a servicemember marries during the final eight years of a twenty-year military career. The couple remains married for another four years after retirement. Although the marriage lasted twelve years, only eight years overlapped with military service. Those facts do not satisfy the ten-year overlap requirement.
Meeting 10/10 does not start payments automatically. A qualifying court order and the other federal requirements must also be satisfied.
Military retirement, like other retirement benefits, may include both community and separate-property interests.
Retirement attributable to service during marriage and before separation generally creates a community interest, subject to the applicable federal rules. A marriage shorter than ten years does not make that interest disappear.
California courts distinguish ownership of a retirement share from eligibility for direct military payment. Marriage of Beltran (1986) 183 Cal.App.3d 292 recognizes that the federal direct-payment restriction does not eliminate the former spouse’s community-property claim.
Consider a couple married for eight years while one spouse serves in the military. The retirement earned during that marriage may include a community portion. If the court awards the other spouse a share, the servicemember remains responsible for paying it even though DFAS cannot make direct property payments under the 10/10 rule.
Neither spouse should confuse the absence of DFAS payment with the absence of an obligation.
The starting point is familiar: identify the community portion of the retirement, then divide that portion between the spouses.
This is the time-rule approach commonly associated with California retirement division. Generally, it examines the service attributable to the marriage in relation to the service used to earn the retirement benefit.
But military retirement requires additional care. Federal law, the retirement system, whether the member is already retired, and the type of service can affect the calculation. Reserve retirement may require an analysis of retirement points rather than simply counting calendar years.
The practical distinction is straightforward:
A former spouse generally receives half of the community portion—not automatically half of the entire military pension.
Service before marriage and after separation may produce separate-property interests. The retirement order must account for those interests and comply with the federal rules governing the particular benefit.
The 10/10 rule does not calculate the community share. It determines whether an otherwise qualifying property award can be paid directly through the military pay system.
The servicemember must pay the retirement share required by the divorce judgment.
That arrangement needs clear terms. The parties should not leave the divorce with a percentage award but no practical explanation of how payments will work.
Depending on the case, the judgment should address:
The absence of direct DFAS payment makes careful drafting and accurate payment records particularly important. If payments are missed, the former spouse may need to enforce the judgment against the servicemember.
Direct payment is a collection mechanism. It does not create the property right, and its absence does not cancel the award.
No. Meeting the ten-year requirement does not determine the amount awarded.
Three separate questions must be answered:
| Question | What determines the answer? |
|---|---|
| Does the spouse have a retirement interest? | Whether the benefit includes a community-property portion. |
| How much should the spouse receive? | The proper calculation and division of that community portion. |
| Can DFAS pay the property award directly? | The marriage-service overlap, qualifying order, and other federal requirements. |
A couple can satisfy 10/10 without the former spouse being entitled to half of the entire pension. A couple can also fail 10/10 while the former spouse remains entitled to a community-property share paid by the servicemember.
A California duty station alone does not settle the question.
Federal law imposes special jurisdictional requirements for military retirement division. The court’s authority may rest on the member’s:
The court’s authority to handle other divorce issues does not automatically establish its authority to divide the pension.
These questions should be addressed early. The member’s participation in the case can also matter when determining whether there has been consent to pension jurisdiction.
The ten-year marriage requirement for direct payment of a retirement property award does not impose the same restriction on enforcing child or spousal support against qualifying military retired pay.
A marriage lasting fewer than ten years does not, by itself, prevent support enforcement.
Support requires its own order and the appropriate enforcement procedure. The amount owed and the amount a pay center can withhold may also be different. A limitation on withholding does not necessarily reduce the underlying support obligation.
Property division and support should be coordinated in the divorce while keeping their different requirements clear.
No. The 10/10 rule does not establish eligibility for continued military medical coverage.
Former-spouse medical coverage and other military benefits follow separate eligibility rules. Receiving a pension share does not automatically preserve those benefits.
Before agreeing to terminate marital status, the parties should understand what coverage will end, what may continue, and what replacement arrangements are needed. A provision in a settlement cannot create a federal benefit for someone who does not qualify.
Potentially. Federal law excludes certain amounts from the retired pay available for property division, including retired pay waived to receive VA disability compensation.
That can affect the amount available to a former spouse. The result depends on the actual benefits and elections involved.
In Howell v. Howell, the United States Supreme Court limited court-ordered reimbursement intended to replace a former spouse’s lost pension share following such a waiver. A promise that retirement payments will never decrease should not be assumed to resolve the issue.
Disability elections deserve attention before settlement. If payments change after judgment, the benefit records and existing orders need to be reviewed before deciding what relief may be available.
A share of retirement during the member’s lifetime and financial protection after the member’s death are separate issues.
An order dividing retirement should not be assumed to establish former-spouse Survivor Benefit Plan coverage. Survivor protection requires separate attention to eligibility, elections, deadlines, costs, and the terms of the agreement or order.
If continued income after the member’s death is part of the intended settlement, address it expressly.
Military retirement can represent years of service and a substantial part of your financial future. A misunderstanding about the ten-year rule should not determine what happens to it.
Edgar & Dow represents servicemembers and military spouses in Riverside and throughout Southern California. H. William Edgar has practiced California family law since 1998. Our firm provides straightforward advice, careful preparation, and courtroom advocacy when disputes cannot be resolved by agreement.
Whether you are negotiating a retirement division or trying to enforce an existing award, we can explain the distinction between your property rights and the payment process—and help you pursue the share required by your judgment.
Official sources · DFAS military retired pay and divorce FAQs · 10 U.S.C. § 1408
More military-divorce articles · Military-divorce representation in Riverside
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