In Pennsylvania, the part of a military pension earned during the marriage is marital property. A judge in the Cambria County Court of Common Pleas can award a former spouse a share of it, no matter how short the marriage was. Federal law then controls how that share is paid, which is where many families get confused. Silverman, Tokarsky & Forman, L.L.C., handles[ property rights in divorce for Johnstown families on either side of a military divorce.
Does the 10/10 Rule Decide Whether You Get a Share?
No. The 10/10 rule only decides who sends the payments. If the marriage overlaps at least 10 years of the service member’s creditable service, the Defense Finance and Accounting Service (DFAS) pays the former spouse directly.
A shorter overlap does not stop a court from dividing the pension. However, the retiree must pay the former spouse’s share directly instead of DFAS. If the retiree misses payments, the Court of Common Pleas can enforce the award like any other unpaid property award.
Why DFAS May Reject a Civilian Pension Order
Many civilian pensions are divided through a Qualified Domestic Relations Order (QDRO) under federal pension law. Military retired pay follows separate rules, so DFAS requires a court order that meets its specific requirements:
- Military Retired Pay Division Order: This order is written under the Uniformed Services Former Spouses’ Protection Act. It must state the award as a dollar amount, a percentage, or a formula DFAS can calculate.
- Frozen Benefit Rule: If the service member is still serving on the date of the divorce, the award is based on their pay grade and years of service on that date, not at retirement.
- Half-Pay Limit: DFAS cannot pay a former spouse more than half of the retiree’s disposable retired pay, no matter what the divorce decree says.
If a Cambria County decree awards “half the pension” without a formula, DFAS may reject it. Fixing the order can delay payments for months.
What Does Disposable Retired Pay Leave Out?
The amount DFAS divides is smaller than the full pension. Under 10 U.S.C. § 1408, these amounts are subtracted before any percentage is applied:
- Retired pay given up to receive VA disability compensation
- Survivor Benefit Plan premiums that cover the former spouse
- Amounts forfeited under a court-martial sentence
- Disability retired pay based on a disability rating percentage
Because of these deductions, a 50% award of disposable pay can be much less than half of the full pension. The divorce decree should state which amount the percentage applies to.
How VA Disability and the Survivor Benefit Plan Affect a Former Spouse’s Share
If a retiree gives up part of their retired pay after the divorce to receive tax-free VA disability compensation, the former spouse’s payment shrinks. In Howell v. Howell, the U.S. Supreme Court held that state courts cannot order the retiree to make up the difference.
Combat-Related Special Compensation (CRSC) cannot be divided at all. Survivor Benefit Plan (SBP) coverage also has its own deadline. The former spouse must be elected for coverage, or must request a “deemed election” with DFAS, within one year of the divorce. Otherwise, the former spouse will not receive survivor payments after the retiree dies.
Get a Military Pension Order Right the First Time
We draft military pension orders to meet DFAS requirements, with the formula, the frozen-benefit figures, and the survivor election clearly stated in the decree. Our lawyers prepare carefully for every hearing, which can strengthen your position in negotiations. Call (814) 536-8600 or request a consultation through our online contact form.
