When you begin divorce proceedings in Maryland, you eventually must divide your assets with your spouse. For servicemen and women, dividing their military pensions is a complex process that is governed by federal law, military rules and state laws. Other factors to be considered include how long the couple was married, and for how many of those years the military spouse served in the military.
In addition to Maryland’s divorce laws, the Uniformed Services Former Spouses’ Protection Act (USFSPA) governs how the military spouse’s retirement benefits will be calculated and divided as a part of the divorce settlement.
What is the role of the USFSPA in military pension division?
Federal law does not provide an automatic right for the divorced spouse of a military member to receive any portion of the service member’s retirement pay regardless of how long the couple was married. The Uniformed Services Former Spouses’ Protection Act (USFSPA) was passed by Congress in 1982, authorizing states to divide military retired pay under certain conditions. Property division laws in the state where the divorce takes place will govern the amount of the award. The requirements of USFSPA also extends to alimony and child support.
While the state court will divide the military pension, it must abide by the USFSPA guidelines. Court orders that are enforceable under the USFSPA include:
- Final divorce decrees
- Legal separation
- Court-ordered property settlement agreements
Military retirement pay will be divided as a marital asset in an equitable division state and the award must be expressed as either a fixed dollar amount or a percentage of disposable retired pay (gross retired pay less allowable deductions).
How is military retirement pay divided?
A common method for calculating how a military pension will be divided is by using a “coverture fraction” which calculates the years of military service that coincided with the marriage divided by the total years of military service at the time of retirement in order to arrive at the “military portion” of the total asset. The nonmilitary spouse theoretically has a right to up to half of the marital portion.
For example, if the couple was married for a period of 18 years overlapping with the spouse’s military service and the military spouse had 20 years of service the equation will look like this: 18/20 = .90 or 90%, which represents the marital portion, half of which is 45%.
What is the 10/10 rule?
In order to receive their portion of a military retirement settlement directly from DFAS (Defense Finance and Accounting Service), which is the military’s payroll agency, the spouse must meet the military’s “10-10 rule,” which means that the marriage must have lasted for ten years that coincide with at least ten years of military service. If the 10-10 rule is not satisfied, then DFAS will not be involved in disbursing the nonmilitary spouse’s military retirement asset.
For spouses that meet the 10-10 rule, the court order is directed to DFAS as a “Military Retired Pay Division Order,” and it must be submitted in compliance with DFAS’s strict formatting requirements.
We have only touched on one aspect of the complicated topic of how a military pension might get divided in a Maryland divorce. If you are a military service member who is contemplating divorce, or if you are married to a member of the military, you should consult with an experienced divorce attorney who is fully versed in the complexities of Maryland military divorce.
You are welcome to contact Cynthia H. Clark & Associates, LLC to schedule a consultation to discuss your divorce. We understand the complicated nature of military divorce. We will represent your interests and get you the settlement you deserve.