The Client is an active serviceman. He sits across the table from his attorney in full uniform. As a discussion of the potential course of his impending divorce develops, eventually the subject of his pension is raised. “I’m not worried” he says to his counsel, “we’ve only been married nine years, so she can’t touch my pension. The ’10/10 Rule’ protects me.” The new Client couldn’t be more confident in his statement. And in the State of New Jersey, he couldn’t be more wrong. Unfortunately, his pension absolutely will be subject to equitable distribution if his spouse asserts her right to her share, regardless of the 10/10 Rule.
There can be no doubt that the so-called ‘10/10 Rule,’ an aspect of the Uniformed Services Former Spouse Protection Act, is a source of much confusion among troops and retirees. All too frequently, servicemembers, men and women both, believe that unless they have been married to their spouse for ten years, their pension is immune from equitable distribution; or, conversely, they allow themselves to be convinced that because they have not been married to their spouse for ten years, they have no right to a share of his or her pension. The 10/10 Rule, however, has nothing at all to do with a State Court’s authority to order military retirement pay to be divided as marital property; it affects only how the court-ordered portion of retirement pay is delivered to the ex-spouse. State courts (with VERY few exceptions, New Jersey NOT being one of them) rule every day that former spouses have a vested interest in military retirement pay as marital property, in the same way that 401(k) retirement funds, personal and/or real property, future earnings and/or medical and retirement benefits are considered marital property and thus subject to equitable distribution.
The reality of the matter is that the 10/10 Rule has nothing at all to do with a State Court’s authority to treat military retired pay as a marital asset to be equitably divided upon divorce. In the State of New Jersey, pursuant to Whitfield v. Whitfield, the equitable distribution of a pension interest acquired during a marriage is grounded on the principle that “a pension plan [is] a form of deferred compensation for services rendered.” Under this theory, a military pension is held to be equitably distributable in a divorce, regardless of the length of the marriage. It is also, pursuant to Whitfield, of no consequence that the pension has not vested at the time of the divorce. These things being the case, the 10/10 Rule (Sometimes referred to as the ‘10-Year Rule’) does not impact a spouse’s ability to claim a share of his or her former spouse’s pension, it only affects how the former spouse receives his or her share of military retired pay to which he or she is entitled pursuant to a divorce. The first “10” of the 10/10 Rule requires a couple to have been married for at least ten years. The second “10” requires the military spouse to have served at least 10 years of service creditable towards retirement during the marriage. If both these conditions are met, then the Defense Finance and Accounting Services (DFAS) may directly pay a former spouse his or her share of military retired pay. If, however, the requirements of the 10/10 Rule are not met, then the military spouse must provide the former spouse his or her share directly, rather than by way of direct payment to the former spouse by DFAS. By no means does the 10/10 Rule protect a pension from equitable distribution solely because a servicemember has been married for less than ten years. At its most simple, the 10/10 Rule exists to allow DFAS to avoid administering small divisions of military retired pay, leaving that duty to the retiree in question. It does not in any way limit or define what share the spouse may receive from the servicemember’s retirement, nor does it protect a servicemember from equitable distribution of his or her pension; it simply establishes when DFAS may pay that share directly to the spouse.
In every divorce, it is important for both parties to know exactly what is at stake, to know what exactly are their entitlements and their risks. All too frequently, servicemembers with substantial retirement assets belabor under the false belief that their pension is not subject to equitable distribution if they have not been married to their spouse for ten years. In the State of New Jersey, this simply is not true. You need to know the facts. You need attorneys who know the law as it applies to a military divorce. Call us any time for a free half our consultation. Here at The Law Offices of Lynda L. Hinkle, LLC, we know military divorce. We know your rights. And we’re here to serve you.
For a free consultation call 856-227-7888 or email [email protected] to discuss your legal options.