Military pensions are often a significant asset in divorce proceedings, and many service members wonder if their ex-spouse can claim a portion of their pension. The short answer is that it depends on several factors, including the length of the marriage, overlap with military service, and applicable state laws.
Can a Former Spouse Claim a Portion of a Military Pension After Divorce?
Yes, a former spouse may be entitled to a portion of a military pension, but it is not automatic. The division of military pensions is governed by the Uniformed Services Former Spouses’ Protection Act (USFSPA) and state laws, which allow courts to divide military pensions if they choose to do so.
The USFSPA, enacted in 1982, allows state courts to treat disposable military retired pay as marital property subject to division in divorce proceedings. However, it does not guarantee an ex-spouse a share of the pension—only that state courts have the authority to divide it if they deem it appropriate.
Factors That Affect Whether an Ex-Spouse Can Claim a Military Pension
Several factors determine whether an ex-spouse can claim a portion of a military pension
- Marriage Duration & Military Overlap – Many states divide the portion of the military retirement which overlaps with the years of marriage.
- Jurisdiction – A state court has the authority to divide a military pension if:
- The service member is a legal resident or domiciled in the state.
- The service member is personally served with legal papers while in the state.
- The service member consents to the court’s jurisdiction.
Time Limits for Claiming Military Pension Benefits
There is no federal statute of limitations for claiming military pension benefits. However, some states impose time limits on modifying divorce decrees or property settlements. This means that in some cases, an ex-spouse could potentially claim a share of the pension years after divorce, depending on state laws and the specific details of the case.
The Survivor Benefit Plan (SBP) & Military Pension Division
The Survivor Benefit Plan (SBP) is another factor in military pension division. SBP provides continued income to a beneficiary after the service member’s death. If a former spouse is awarded a portion of the pension, they may also be eligible for SBP coverage, which can affect the overall pension distribution.
Understanding the 10/10 Rule
Many states, including Washington, apply the 10/10 rule. This rule requires at least 10 years of marriage overlapping with 10 years of military service for direct payments through the Defense Finance and Accounting Service (DFAS). Even if a couple doesn’t meet the 10/10 rule, a court may still award a portion of the military pension. The 10/10 rule affects how payments are made, not whether the ex-spouse is entitled to a share.
Understanding the 20/20/20 Rule
The 20/20/20 rule grants full military benefits to certain former spouses. To qualify:
- The marriage must have lasted at least 20 years.
- The service member must have completed at least 20 years of military service.
- There must be at least 20 years of overlap between marriage and military service.
Former spouses who meet the 20/20/20 rule are eligible for full military benefits, including healthcare, commissary privileges, and exchange benefits.
Additionally, there is a 20/20/15 rule, which provides one year of transitional medical benefits through TRICARE for former spouses who had at least a 15-year overlap between marriage and military service. However, this coverage does not include full commissary and exchange privileges.
Protecting Your Military Pension During Divorce
For service members concerned about protecting their military pension, consider these strategies:
- Negotiate a Fair Settlement – Work with your attorney to ensure all marital assets (not just the pension) are considered in a fair division.
- Offer Alternative Assets – Some service members offer other assets of equal value in exchange for keeping their full pension.
- Understand State Laws – Each state has different rules for dividing military pensions.
- Seek Expert Advice – Consult with a divorce attorney experienced in military divorces.
- Document Everything – Keep detailed records of your military service, marriage timeline, and any agreements made during divorce proceedings.
- Consider Mediation – Mediation may lead to more favorable pension division than litigation.
The Role of the Defense Finance and Accounting Service (DFAS)
The Defense Finance and Accounting Service (DFAS) manages direct pension payments to former spouses. However, for DFAS to process payments, the 10/10 rule must be met (10 years of marriage overlapping with 10 years of military service). If this rule isn’t met, the service member must make payments directly, as ordered by the court.
DFAS also requires court orders to specify pension division as either a fixed dollar amount or a percentage of disposable retired pay. Orders that fail to meet DFAS guidelines may be rejected, causing delays.
Can an Ex-Spouse Claim a Military Pension Years Later?
An ex-spouse may claim a military pension years after divorce, depending on state laws and the original divorce decree. However, if the pension division was addressed in the original settlement, reopening the case can be difficult. Some modifications may be possible if financial circumstances have significantly changed.
Because military pension division is complex, both service members and former spouses should seek experienced legal counsel. A skilled military divorce attorney can help navigate the USFSPA, state laws, and DFAS requirements, ensuring a legally sound resolution.
Going Through a Divorce? We Can Help.
The family law attorneys at Bliss Law Group assist service members and spouses with divorce, child custody, child support, and property division in Washington State. With offices in Tacoma and Olympia, we are committed to protecting your rights and securing the best possible outcome.
Call us at 253-499-8845 or contact us online to schedule a consultation.
