To divide military retired pay in a divorce, the required court order is a:
Military Retired Pay Division Order
—or more formally—
Final Divorce Decree or Property Settlement Agreement that meets the requirements of the Uniformed Services Former Spouses’ Protection Act (USFSPA)
Why Is This Necessary?
The Uniformed Services Former Spouses’ Protection Act (USFSPA) (10 U.S.C. § 1408) is the federal law that authorizes state courts to treat military retired pay as marital property and allows the Defense Finance and Accounting Service (DFAS) to make direct payments to a former spouse if certain conditions are met.
What Kind of Order Is Required?
The order must:
- Be issued by a state court (not federal).
- Be part of a final decree of divorce, legal separation, annulment, or a court-ordered property settlement.
- Clearly state:
- The military member’s name and Social Security number.
- The former spouse’s name and Social Security number.
- The exact formula, percentage, fixed amount, or hypothetical retired pay the former spouse is awarded.
Key Requirements for DFAS to Make Direct Payments:
- 10/10 Rule:
DFAS will only make direct monthly payments to a former spouse if:- The marriage lasted at least 10 years, and
- The service member completed at least 10 years of creditable military service during the marriage.
If the 10/10 rule is not met, the former spouse may still be entitled to a portion, but the payment must come directly from the retiree—not DFAS.
- Proper Wording:
DFAS is very strict about how the order is written. For example, vague language like “the former spouse shall receive her share” won’t work. It must specify a clear amount, percentage, or formula. - Certified Copy:
DFAS must receive a certified copy of the court order.
Other Notes:
- Survivor Benefit Plan (SBP) coverage is not automatic and must be specifically awarded by the court and properly elected by the service member (or deemed election by the court).
- Disability pay (VA compensation) is not divisible as marital property under federal law, though it can impact the total amount of divisible retired pay.
Summary
| Division Type | Required Order | Handled By |
|---|---|---|
| Military Retired Pay | State court order under USFSPA (divorce decree/property order) | DFAS |
| Direct Payment to Former Spouse | Only if 10/10 rule is met | DFAS |
| Survivor Benefit Plan (SBP) | Must be specifically awarded and elected | DFAS |
| Disability Pay | Not divisible | N/A (protected by law) |
If you’re dealing with a military divorce, it’s strongly advised to consult an attorney familiar with military divorce lawand DFAS regulations, as the technical details are critical.
For many military families, particularly career military families, there is both a Military Retired Pay and a DoD pension, which is more like FERS. When a career military spouse leaves military service and, as many do, returns to the civilian sector, often supporting a similar or the same people as they supported while in their military service, the main difference may simply be that they are no longer accruing service credits for the Military Retired Pay and are now accruing credits toward the DoD pension. Then, you would need both a DFAS order and a COAP to properly divide the pensions. There may also be a TSP that needs dividing. TSPs are also not covered by ERISA and therefore require another separate COAP.
All of this is important because I want you to recognize that there are many different types of DROs that may be used to divide your retirement assets. It is so common that judges and lawyers just say “divide by the time rule” and call it a day, that I cringe every time I hear a judge say those words.
These retirement accounts, annuities and pensions are usually the most valuable thing a public sector servant owns, particularly if they have had a long career working at government salary. This is not to say government salaries are not excellent sources of middle class income, but one of the great selling points of a career in civil service is the retirement benefits. These benefits are divisible in a divorce. Dividing them requires precision and stick-to-itiveness. And it almost always requires the help of a knowledgeable attorney.
Do not trust the division of these assets to anyone not qualified to write the documents.
I understand that at the end of the divorce, you are almost assuredly exhausted and running on financial fumes. But putting off the effectuation of your judgment for a thousand or a couple of thousand dollars places an asset that may be worth a million dollars completely at risk.
