Military Spouses May be Required to Name Former Spouse under the Survivor Benefit Plan Following Divorce, and the 10/10 Rule

When a couple divorces and one of the spouses is a member of the armed forces, the former spouse of that military member is still entitled to a percentage of the Survivor Benefit Plan and retirement pension plans, even when the military spouse remarries.  Heldmyer v. Heldmyer, 555 So.2d 1324 (Fla. 5th DCA 1990).  This percentage is usually 50% of any amount that has accrued in such accounts, from the date of marriage through the date of separation.  Courts may also require military spouses to maintain an annuity for their former spouse or name their former spouse as the beneficiary under the Survivor Benefit Plan after the couple has finalized their divorce.  Franks v. Franks, 1D11-2219 (Fla. 1st DCA May 4, 2012).  The benefits of these plans are considered to be part of the marital property that the former spouse is entitled to because of their contribution to the marriage.  The former spouse is not entitled to any of the pension that accrues after their divorce from the military spouse is finalized. 

 

The 10/10 Rule

While a military member must be married while simultaneously a member of the military for at least 10 years in order to have such retirment/pension percentrage be paid directly through the military's retirement/pension administrator (DFAS), it is not necessary for those 10 years to have elapsed in order for the court to award a martial percentage to a spouse during a divorce.  The only difference when the 10/10 Rule is not met, is that such a percentage will be ordered to be paid to the spouse directly by the other spouse, usually as a monthly check or one time payment.  What this basically means is that a military member cannot sneak out of a marriage at 9 1/2 years and assume he/she will have no retirement/pension obligation to his/her spouse.  http://www.armytimes.com/money/retirement/offduty-military-retired-rule-doesnt-protect-retired-pay-in-divorce-120610w/  Importantly, DFAS will still take responsibility for distributing funds related to an Income Deduction Order for child support or alimony, regardless of the 10/10 Rule.  http://qdros.com/LAW_qdro_mil.asp