What Is a Military Spouse Entitled to in a Divorce?

Because Illinois is an equitable distribution state, the courts are focused on coming to a property division settlement that is fair to both spouses. Unlike community property states where marital property is generally split 50/50, the courts look for balance and fairness in equitable distribution. Consequently, how property and debts are divided will vary case by case. This is the same for military divorces.

Common assets that must be divided during divorce include:

  • Bank accounts
  • Cars, boats, and other property
  • Investment portfolios
  • Real estate, including homes and investment properties
  • Retirement accounts, including pensions

During the divorce process, the separating couple will negotiate a divorce settlement, just a civilian couple would. This process includes asset division, debt division, spousal support, child support, and child custody. However, if you or your spouse are in the military, this process is complicated by rules surrounding military pensions.

Because military divorces are subject to both state laws and federal laws, how military pensions are divided and distributed is directly impacted. Therefore, it is vitally important that if you or your spouse are/were in the military and get divorced, you work with a skilled attorney experienced in handling military divorces.

Dealing with Military Pensions in a Divorce

One of the most challenging aspects of a military divorce is dealing with military pensions. Under Illinois law, retirement accounts and pensions may be classified as marital property and be subject to the property division process. The Uniformed Services Former Spouses' Protection Act (USFSPA) deals directly with military pensions and is an important piece of legislation that provides guidance on how the former spouses of military service members can receive their portion of their ex's military pension.

This Act "recognizes the right of state courts to distribute military retired pay to a spouse or former spouse," and "provides a method of enforcing these orders through the Department of Defense." This means that qualifying ex-spouses of military service members who are awarded a portion of their ex's military pension can receive their payments directly from the military.

It is important to remember that spouses are not automatically entitled to their ex-spouse's military pension under this Act. Instead, this will be decided during the state's divorce process. Generally, the military service member's spouse will only be entitled to the portion of the service member's pension that is classified as marital property (contributions and earnings made during the marriage).

What Is the 10/10 Rule?

The 10/10 rule governs how a former spouse's portion of the service member's pension is dispersed after a divorce. If eligible, the 10/10 rule allows the former spouse to collect their share of the retirement pay directly from the DFAS (Defense Finance and Account Service).

The 10/10 rule gets its name from the eligibility requirements it stipulates. To be eligible, the former spouse must have been married to the service member for at least ten years, and during the marriage, the service member must have accrued ten years of creditable active service.

If you are unsure if you qualify for the 10/10 rule, or need help with your divorce case, turn to an experienced lawyer, like ours, at the Law Offices of Jonathan Merel, P.C., for help. Our attorneys have helped many military families navigate the difficult divorce process, and we are prepared to use our experience to help you, too.