Topics on this page

• What can state courts do?
• What's required?
• How are payments made?
• How can a former spouse enforce an award?

What can State courts do?

Under federal law, military retired pay is a federal entitlement, not a qualified pension plan. Distribution of retired pay to former spouses is not an automatic entitlement. However, the Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes state courts to treat disposable retired pay as marital property in divorce proceedings and to order support payment from it. A state court may:

• Divide military retired pay as property in a divorce decree, annulment, or property settlement.
• Order a portion of retired pay to be directed to the former spouse for child support or alimony.

The amount of retired military pay that can be paid to a spouse or former spouse is limited by federal law:

• Up to 50% of disposable retired pay for property division.
• Up to 65% of disposable retired pay If combined with child support/alimony garnishment.

Read the Law: 10 U.S.C. 1408, 42 U.S.C. 659

What’s required?

1. Jurisdiction

   To treat military retired pay as property, the court must have jurisdiction over the service member. For a court to have jurisdiction over someone (“personal jurisdiction”) means that the court has the legal authority and power to hear and make decisions regarding a case involving that person. To establish personal jurisdiction, the court typically considers factors such as the person’s physical presence within the court's geographical jurisdiction, residence or domicile in that jurisdiction, or consent to the court's authority through legal agreements or contracts. 

   The court has jurisdiction over a service member if:

   • The member is a resident of the state (not solely due to military orders).
   • The member lives in the state at the time of divorce.

   • The member consents to jurisdiction.

      

2. Final Court Order

   To award a portion of retired military pay, the court order must be clear and definite. The order must specifically direct that payment come from retired pay. Without this language, Defense Finance and Accounting Service (DFAS) will not honor the order. 

   The order must specify either:

   • A fixed monthly dollar amount, or
     • If the award is a fixed dollar amount, then the former spouse will not be able to receive any of the military member’s retired pay cost of living adjustments (COLAs).
   • A percentage of disposable retired pay.
     • If the amount is a percentage of the member’s disposable retired pay, the former spouse’s award will increase over time because of the periodic living adjustments.

    

   If the order is vague, conditional, or tied to other obligations (for example, alimony) or figures that are subject to change (like Survivor Benefit Plan premiums), DFAS cannot enforce it.

Read the Law: U.S. Code, Title 10 § 1408
Read the Regulations: Department of Defense Financial Management Regulation, DoD 7000.14-R, Vol 7B, Ch 29
 

How are payments made?

If a state court awards a share of military retired pay, payment can be made in two different ways:

1. Direct payment from DFAS
   • Available only if the 10/10 Rule is satisfied:
     • Married at least 10 years, and
     • At least 10 years of marriage overlapped with the member’s creditable military service.
   • DFAS will send the former spouse’s share directly each month, following normal pay cycles.
2. Direct payment from the service member
   • If the 10/10 Rule is not met, DFAS cannot make payments.
     • The 10/10 rule does not affect the validity of the court award. It only determines whether DFAS can process direct payments.
   • The court order is still valid, but the service member is responsible for making payments directly to the former spouse.
      

How can a former spouse apply for enforcement of a state court award?

If the 10/10 rule is met:

The former spouse may apply to DFAS for direct payments by submitting:

• DD Form 2293 (Application for Former Spouse Payments)
• Certified copy of the final court order
• Copy of the marriage certificate (unless marriage dates appear in the order)
• Direct deposit form
• IRS W4-P
• If applying for child support, the birth dates of children. If the court order does not include the birth dates of the children, then you must provide photocopies of the children's birth certificates.

Send to:

Defense Finance and Accounting Service (DFAS)
Cleveland DFAS-HGA/CL
P.O. Box 998002
Cleveland, Ohio 44199-8002
Fax: 877-622-5930

If you choose to fax, please include the following:

• The military member’s social security number (on all documents)
• Return Phone number
• Return fax number
   

If the 10/10 rule is not met 

If the 10/10 requirement is not met, the former spouse cannot apply to DFAS for direct payments. The court order awarding military retired pay is still valid, but enforcement must occur through Maryland state courts. Enforcement options include:

• Voluntary direct payment by the former spouse
• Earnings withholding (wage garnishment): The former spouse may request the court to issue an earnings withholding order, directing the retiree’s employer to deduct payments directly from the retiree’s paycheck.
• Contempt proceedings: If the service member fails to comply with the court order, the former spouse can file a petition for contempt. The court may impose fines, order payment of arrears, or in extreme cases, jail time until the member complies.
• Property Seizure: Maryland courts may permit seizure of bank accounts or other personal property to satisfy the unpaid award.

Read the Law: Md. Code, Courts & Judicial Proceedings § 11-601 

Read the Rule: Md. Rule 2-648