When a military marriage ends, the legal process involves more than typical divorce proceedings. Service members and military families are subject to specific regulations, federal laws, and benefit rules that civilian divorces do not encounter. Minor oversights can cost former spouses tens of thousands of dollars in retirement benefits or healthcare coverage.
This article covers the most common errors in military divorce proceedings, including jurisdiction issues, benefit miscalculations, custody complications, and survivor benefit plan oversights.
Misunderstanding the 10/10 Rule for Pension Payments
The 10/10 rule allows a former spouse to receive retirement pay directly from the Defense Finance and Accounting Service if the marriage lasted at least 10 years, with those years overlapping at least 10 years of creditable military service.
Many people wrongly assume that marriages shorter than 10 years can’t receive any military pension. The 10/10 requirement applies only to the payment method, not to entitlement. State law governs pension division, and courts frequently award retirement benefits even when the 10/10 threshold is not met.
Confusing the 20/20/20 Rule With Pension Division
The 20/20/20 rule determines eligibility for continued military benefits after divorce, including TRICARE medical coverage, commissary privileges, and exchange access. This regulation has nothing to do with dividing military pensions.
The Department of Defense report to Congress on former spouse protection laws states that three conditions must be met: the marriage must have lasted at least 20 years, the service member must have completed at least 20 years of qualified service, and there must be at least a 20-year overlap between the marriage and military service.
Former spouses meeting these criteria can retain full military benefits for life, provided they don’t remarry before age 55. A related provision, the 20/20/15 rule, grants limited benefits when only 15 years overlap. Without understanding the distinction between benefit eligibility and pension division, former spouses may fail to pursue rightful pension payments.
Failing to Address the Survivor Benefit Plan
Perhaps the costliest mistake involves overlooking the Survivor Benefit Plan. Without SBP coverage, a former spouse loses their portion of the military retirement as soon as the service member passes away.
Former spouse SBP coverage doesn’t happen automatically. The service member must elect this coverage using DD Form 2656-1. The Defense Department’s official guidance makes clear that proper election procedures and timelines must be followed.
Former spouses can protect themselves by submitting a “deemed election” to DFAS, which assures coverage even if the service member fails to act. Failing to meet these deadlines could result in a loss of hundreds of thousands of dollars in lifetime benefits. The SBP carries a monthly premium that reduces the retiree’s monthly pay. Divorce settlements should specify who pays these costs.
Jurisdiction Errors That Invalidate Orders
Filing for military divorce in the wrong location represents another mistake. Federal law imposes stringent restrictions on the courts that have the authority to divide military pensions. DFAS explains that a court can divide military retirement benefits only if it has jurisdiction over the service member based on the service member’s legal residence, actual residence, or consent.
Military personnel frequently hold legal residency in one state while being assigned to duty in another. Courts in states where a service member is only temporarily stationed need their consent to divide military pensions. When courts lack proper jurisdiction, DFAS will reject their orders, leaving former spouses without the benefits they expected.
Disregarding the Servicemembers Civil Relief Act (SCRA)
This legislation safeguards active-duty military personnel from legal disadvantages arising from their service. The SCRA protects service members by stopping courts from issuing default judgments in divorce cases if they cannot respond because of their military service.
Courts are required to appoint attorneys for service members before issuing default judgments, and may grant 90-day stays if military duties significantly hinder a member’s ability to participate.
Spouses filing for divorce sometimes ignore these protections, leading to delayed proceedings or invalidated orders.
The Impact of Deployment on Child Custody
Child custody arrangements in a military divorce require careful forethought. Federal law now prohibits courts from considering deployment alone in determining permanent custody changes.
Military family care plans should coordinate with court-ordered parenting plans, specifying who will care for children during deployments and how visitation will resume afterward. State laws vary significantly on relocation. Many service members assume that military orders automatically permit child relocation, but courts can deny relocation requests even when the orders require a move.
Submitting Defective Orders to DFAS
Even when divorce agreements correctly address military benefits, administrative errors can prevent implementation. According to DFAS guidance, orders must include precise language specifying the former spouse’s share in dollars or as a percentage of disposable retired pay.
Vague language fails to impose a clear duty on the service member. DFAS rejects such orders, leaving former spouses without the payments they expected. Required forms include DD Form 2293 for pension division and DD Form 2656-10 for deemed SBP elections.
Contact Milstein Siegel for Military Divorce Representation
At Milstein Siegel, we have extensive experience handling military divorce cases throughout Maryland. We understand how to properly structure pension division orders, protect SBP benefits, address jurisdiction questions, and handle custody arrangements for military families.
We work to prevent the costly mistakes that can jeopardize your financial security and parental rights. Contact Milstein Siegel online or call (443) 230-4674 to discuss your military divorce case and protect your future.