Drafting Military Pension Division When 10/10 Is Not Met

SBP eligibility doesn’t depend on 10/10.

10/10 controls how retired pay is paid; the Survivor Benefit Plan has its own eligibility, election, and filing rules. A court can order former-spouse coverage. The member’s election generally must be received within one year of the divorce — and if the member fails or refuses, the former spouse’s “deemed election” request generally must be received within one year of the court order requiring coverage. Miss both windows and coverage is usually lost; correction-board relief exists but is not guaranteed. If the parties decline SBP, any life-insurance replacement should spell out the amount, duration, ownership, beneficiary, premium responsibility, proof of coverage, and lapse remedies — private insurance is not automatically equivalent to SBP.

Build in the former spouse’s right to verify the calculation.

In a 10/10 case, DFAS calculates the former spouse’s share from the member’s payroll records. In a non-10/10 case, the member generally becomes responsible for calculating and remitting the payment — and the former spouse may never see the pay data behind the number. If the decree doesn’t give the former spouse an express right to retirement and pay records, the right to have the calculation verified, and advance notice before the member retires, the client is trusting the member’s math for the rest of both their lives.

Establish the tax-coordination process before payments begin

When DFAS pays a former spouse directly, it issues the former spouse a separate 1099-R and applies federal withholding rules to that payment. When 10/10 isn’t met, the retired pay is generally paid and reported to the member, who then remits — and the right way to reconcile the tax is fact-specific. The drafting point is to set the process now: the intended after-tax allocation, who performs the year-end true-up, how a neutral tax professional will be selected when needed, how disputes get resolved, and who bears the cost. A clause that says only “parties shall consult a CPA” is where these reconciliations stall.

The order must supply the payment and enforcement mechanics.

In a 10/10 case, DFAS is in the loop — if DFAS rejects the order or requests clarification, counsel may be able to obtain and resubmit a clarifying order. In a non-10/10 case, payment runs through the member personally, and the remedies for nonpayment come from state law, not DFAS. If the agreement is silent on an issue, that issue is likely to be litigated — or lost. Build in: direct-payment mechanics, notice of retirement, records access, COLA treatment, tax coordination, SBP election (or replacement), survivor protection, dispute resolution, and a retention-of-jurisdiction provision allowing the court to enforce or clarify the award to the extent state and federal law allow. Thin drafting here is how former spouses lose benefits years later.