(This article by David Tobenkin originally appeared in the November 2026 issue of Military Officer magazine and is the second of a two-part series. The first article covers attorneys and regions.)

Military families facing divorce share many of the challenges civilian families do, but they also experience unique issues that, without appropriate attention, can lead to permanent and costly mistakes. This second article in a two-part series covers benefits and custody that may be shared between the divorcing parties.  

This story is for informational purposes only. MOAA recommends consulting a qualified family law attorney knowledgeable about military divorce.

The Disposition

Divorcing spouses are generally free to negotiate a marital settlement agreement that will govern the disposition of most of their assets and the custody of their children. However, a judge might enforce conformity to certain state and federal standards for the division of certain assets based on what they determine are equitable adjustments, said Col. Mark Sullivan, USAR (Ret), a Life member of MOAA and the principal at Raleigh, N.C.-based Sullivan & Hilscher Family Law.

“In general, it’s 50-50 for the spouse of marital property,” said Sullivan, who previously served as a judge advocate. “It’s not half the pension; it’s usually half the marital share of the pension, the portion acquired during the marriage.”

Lawyers can help clients avoid overpaying spouses or attempting to underpay them. For example, it would typically be inequitable to a divorcing servicemember to agree to split 50% of a military pension with a spouse who is not a servicemember, especially if the marriage had lasted only a few years, said Michael Kevin Murphy, a former Army officer, a MOAA member, and an attorney at his namesake Northern Virginia law firm.

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The practice is restricted to family law, and Murphy has represented active duty and retired servicemembers as well as military spouses for many years. “There is a formula that smart lawyers use for this that is almost always presumptively fair, that gives the servicemembers’ spouses a proportionate share of the military pension/retired pay.”

Retired Pay

State laws can provide the authority for division of retired pay or military pensions. Usually, the spouse gets half of the marital share; that is, the portion acquired during the marriage.

But in 2017, that division became subject to a federal limitation called the frozen benefit rule, Sullivan said. The rule, codified in the Uniformed Services Former Spouses’ Protection Act (USFSPA), applies to all divorces occurring as of Dec. 23, 2016, in which the servicemember is not yet receiving or entitled to receive a military pension or retired pay. It states that the money must be divided as if the servicemember had retired on the date of divorce, whether or not the individual was eligible to retire. The only additions are passive cost-of-living adjustments made to the amount by federal law after that date and until the servicemember’s actual retirement.

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While the marital share of this pay is generally divided 50-50, there are different ways to measure the split, such as factoring in how many Reserve retirement points were acquired during marriage versus the number of years of marital pension service.

SBP Coverage

Divorcing parties may concur in a separation agreement, or judges might order Survivor Benefit Plan (SBP) coverage to ensure a continued income stream to a former spouse after the death of the servicemember. The parties will wind up paying for SBP in the same ratio as their split of the pension. For example, Sullivan said, if the former spouse gets 40% of the pension, then that person will pay 40% of the SBP cost.

Unlike civilian federal employee equivalents, a military plan can have only one adult SBP beneficiary.

If the beneficiary remarries before age 55, benefits will be suspended for the survivor. But if that remarriage later ends for any reason, SBP eligibility may be reinstated.

Sullivan noted the default base amount for the SBP benefit is 55% of the full retired pay, which means the former spouse can receive a windfall at the servicemember’s death unless the parties or the court determine a lower SBP base should be elected.

“Without an adjustment to the SBP base amount, the former spouse could end up with 55% of the retired pay even though he or she might only be entitled to 40% of the pension during the [servicemember’s] lifetime,” Sullivan said. “It’s also vital for the servicemember to consider who should pay for the SBP coverage.”

Deadlines are another SBP issue, said Murphy. To lock in SBP coverage for a former spouse, the parties should execute and submit DD Form 2656-1 to the Defense Finance and Accounting Service (DFAS).

[DFAS.MIL: Survivor Benefit Plan]

The former spouse can also unilaterally make a deemed election of the SBP coverage by submitting DD Form 2656-10 within a year of the order requiring SBP coverage. However, if  the one-year election deadline passes, then DFAS cannot comply with any court order requiring SBP coverage for the former spouse. That means the former spouse will lose the SBP benefit.

Retirement and Investment

Thrift Savings Plan (TSP) accounts (part of the military Blended Retirement System) can also be divided at divorce.

The TSP account is the same for servicemembers as for career federal government civilian employees, and Accenture Federal Services administers it. In a separation agreement, the marital portion of a TSP will typically be split 50-50 for funds accrued during the marriage. However, a judge might adjust this percentage if the matter goes to court, Murphy said.

Former spouses should act promptly to complete the required paperwork to transfer the designated funds to an individual retirement account; otherwise, they may face taxes or a monetary penalty, Sullivan explained.

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Consider a trustee-to-trustee transfer that moves the spouse’s TSP money to an IRA, which, like the TSP, is a tax-deferred retirement account, Sullivan said.

The Numbered Rules

DFAS helps enforce the so-called 10/10 rule, which governs whether a former spouse can receive a portion of the military retiree’s pension directly from the agency (or for the Coast Guard, from the service’s Pay and Personnel Center) instead of dealing directly with the former servicemember.

Murphy noted DFAS does not determine whether the former spouse may claim a share of the servicemember’s pension or retired pay; that’s determined in divorce negotiations.

Per DFAS, “for orders dividing retired pay as property to be enforced under the USFSPA, a member and former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service creditable towards retirement eligibility (the 10/10 rule).”

The 20/20/20 rule governs whether an unmarried former spouse qualifies for medical, commissary, exchange, and theater privileges. According to Military OneSource, eligibility is met if:

• The parties were married for at least 20 years at the time of divorce, dissolution or annulment.
• The servicemember performed at least 20 years of service creditable for retired pay (retirement is not mandatory in this scenario).
• There was at least a 20-year overlap of marriage and military service.
• The former spouse remains unremarried.

Under the 20/20/15 rule, former spouses might be entitled to TRICARE coverage if:

• The servicemember performed at least 20 years of creditable service.
• The parties were married for at least 20 years at the time of divorce, dissolution or annulment.
• There was at least a 15-year overlap of marriage and military service.

Under this rule, former spouses can’t access exchange, installation, or commissary privileges. However, a former spouse with employer-sponsored medical insurance is ineligible for TRICARE while covered.

Another transitional health care benefit, the Continued Health Care Benefit Program, is available to former military spouses who are not currently serving. That person can buy up to 26 months of this coverage.

[TRICARE.MIL: Continued Health Care Benefit Program]

Murphy said the nonmilitary spouse might want to persuade the servicemember to meet minimum military service criteria to ensure eligibility for post-retirement health benefits.

Custody

Courts typically use “the best interests of the child” standard to determine custody of minors.

For custody of pets, consider lifetime health care costs when negotiating, Murphy said. It’s less-considered factors like this that can justify getting proper representation.

David Tobenkin is a writer in Maryland.