Military Divorce – It Depends

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Samaritan Law Group

Jacksonville, FL


While I was active duty military and getting divorced the most annoying answer that I ever got from a lawyer was “it depends.” I heard that answer so many times that I wanted to shout, “just give me a straight answer!” I was so annoyed I eventually went to law school myself to find out the answers. The truth is, it depends.

For active duty service members seeking a divorce one of the big questions is, “will this affect my retirement?” Again, the answer is, it depends. Many service members, retirees, or spouses seeking divorce, are concerned about how retirement pay should be divided. Under the Uniform Serves Former Spouses Protection Act, the major factors to look at are the length of the marriage, the length of service, and the amount of overlap between the marriage and the time in service. There are a couple of “rules” or guidelines that help.

The “20/20/20 rule”, supports the idea that a marriage lasting at least 20 years, and a military career of at least 20 years, when the marriage overlapped at least 20 years of the career the spouse deserves an equal (or nearly equal) share of the retirement. Look at the situation where a young person gets married just before going to boot camp. They stay together for the entire 20 year career, but divorce shortly after retiring. All of the work put into the military career was what some call marital effort, or work done to better the marriage. It makes sense that when the marriage splits, the fruit of the marital effort also splits. But what if it is not exactly 20/20/20?

In cases where the marriage does not neatly fit into the above scenario, there are calculations concerning the length of the marriage, the length of service, and the amount of overlap between the marriage and the time in service. With everything measured out on a timeline, it becomes a matter of working out the ratio of service/marriage overlap and dividing only that portion. The math part is not very difficult, but an attorney with a good understanding of the military is essential to ensuring that your rights are protected.

The “20/10/10 rule” helps determine whether DFAS will issue a divided retirement check to the former spouse directly or whether the retiree will have to send that portion themselves. There is another application of the 20/20/20 rule that determines the former spouse’s access to military benefits. In the neat scenario where the marriage lasts the entire military career, the former spouse will have the same access as the retiree to things like post exchange and commissary, military health insurance (Tricare), and access to on-post social services. In cases where it is less than 20/20/20, there is another formula to determine which benefits apply and for how long.

When there are children involved, the children have the right to the same access as the parent with the best benefits. A person who is the primary caregiver for the children of a military marriage may have better access to services than they would have otherwise. The idea is that the children deserve the benefits and the way to get the benefits to the children is to allow the caregiver access as well. This can become complicated quickly. An attorney who understands military service can make things much easier.

Divorce is always a serious matter and everyone should have good legal counsel to help them through. However, military divorces have special concerns. If you are a service member, retiree, disabled veteran or the spouse of one of these, you should consult an attorney who

understands the military. That understanding should extend beyond knowledge of the “rules”, but your attorney should also understand the culture of service. How things happen on a military installation is substantially different from how things are handled off-post. Not every attorney knows the military organizations and offices involved, or understands how the military works. That knowledge can make all the difference when you are building a new life after divorce.

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