When it comes to divorce and division of property among former spouses, military families confront some unique issues.  Particularly with respect to division of property such as military pension benefits, special procedures must be followed to divide such assets because provisions governing military retirement plans differ considerably from those of private employers. 

Location matters

Virginia courts have the ability to divide a military spouse’s disposable retirement pay between the military member and his or her spouse as part of a property distribution when divorce occurs.  Because courts in certain other states and in foreign countries do not have such authority, the location of a divorce can have a considerable impact on the division and distribution of retirement pay. 


10/10/10 Requirement

Additionally, Federal law imposes constraints on the division and distribution of military retirement pay in instances of divorce.  For example, once parties to a divorce agree on or a court orders a division of military retirement pay, the Defense Finance and Military DivorceAccounting Services (DFAS) that administers distribution of military retirement benefits can pay the non-military spouse’s share of a military pension only if certain conditions are met.  Specifically, the spouse must satisfy what has become known as the “10/10/10 requirement,” providing that: (1) the service member and spouse must have been married for at least 10 years; (2) the service member must have been in the military for at least 10 years; and (3) at least ten years of that military service must have occurred during the marriage.  


Virginia Military Divorce: Highly Specialized Practice Area

If all of these conditions are not met, a spouse may still be awarded a portion of the military retirement pay under the terms of a divorce settlement agreement or a court-ordered property distribution; however, the share would have to be provided to the spouse from the military member directly.  Even if the military pension falls under the terms of the 10/10/10 provision, the precise terms of how the pension is paid out and divided will depend on fact–specific considerations.  In this regard, the services of experienced legal counsel are essential to help you assess options and ensure conformity with this highly specialized and regulated area.

A recent case from Portsmouth, Virginia, Epps v. Epps (March 10, 2015), reveals the complexity and highly specialized nature of issues involving distribution of military pension assets.  The court’s ruling also confirms the need for parties to a divorce to accurately document the terms of and circumstances giving rise to the military retirement benefits, as well as the marital and military service tenure involved.

In the Epps case, the husband appealed certain aspects of a final divorce decree related to equitable distribution of assets, including his former wife’s military retirement. The Husband claimed that the trial court had failed to classify the wife’s military retirement property as either separate or marital, in violation of the Virginia Code provision concerning property division when dissolution of a marriage occurs (Code Section 20-107.3(A)). 


Details Required to Establish Military Benefits and Retirement Accounts as Marital in Virginia

The Epps decision noted that, in order for the military retirement to be considered part of the marital assets being equitably divided, the husband had the burden to prove that his former wife’s pension, or a portion of it, was marital property as defined in the Virginia Code.  However, in this instance, the husband only presented vague testimony about the terms of his wife’s military service, her dates of military service, and the duration of the marriage as aligned with her military service tenure.   The husband thus failed to provide the exact date his former wife entered the Coast Guard, the date she retired, or the length of time the parties were married while the wife was enlisted in the Coast Guard.  The court ruled that, in view of such evidentiary gaps, it was impossible to properly classify the property or determine if there was a “marital share” to be allocated between the former spouses in the distribution of assets.  The husband was, therefore, unsuccessful in appealing the court’s failure to include the military retirement when determining equitable distribution of the couple’s assets.

This case documents how essential it is to have specific information responsive to the 10/10/10 provision, as well as the services of expert legal counsel when spouses with military retirement assets file for divorce.

Your Virginia military divorce matter requires awareness of these rules: call Smith Strong, PLC to review your situation in detail and develop a battle plan for your military divorce – call (804) 325-1245 or (757) 941-4298.

H. Van Smith
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