In order to divide a military pension as marital property, the “10 year rule” must be followed. There must be at least 10 years of marriage coincident with at least 10 years of military service (active or reserve). The emphasis is on property, because for child support, spousal support, alimony, or the survivor benefit plan, there is no time requirement. The divorce court may order the service member, when retired, to pay a portion of the pension to his or her former spouse regardless of the 10 year rule, but that would be an order for the individual to pay it personally. The military pension system would not be involved in such an order.
In a case where there is no 10 year period of overlap of marriage and military service, the pension cannot be awarded as marital property. The emphasis is on property, because a portion of the pension can be awarded without respect to length of marriage, if it is regarding spousal support or alimony or child support. In such a situation, the decree of divorce or settlement agreement should not refer to the military pension as property.
