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Divorce proceedings can be complex, especially when one or both spouses are current or former members of the military. One significant aspect of military divorce is the division of retirement benefits, which often requires adherence to specific rules and procedures. In Colorado, like in many other states, military retirement benefits are considered marital property subject to division during divorce. This blog aims to provide insight into how military retirement benefits are divided in Colorado divorce cases, with a focus on the 10/10 rule and the importance of seeking legal guidance from a knowledgeable family lawyer.

Understanding Military Retirement Benefits Division:

Military retirement benefits, accrued during a service member’s time in the armed forces, are considered marital property if earned during the marriage. As such, they are subject to division between spouses upon divorce. In Colorado, the division of military retirement benefits follows the same principles as the division of other marital assets, with the goal of achieving an equitable distribution.

The 10/10 Rule:

The 10/10 rule, established by federal law, governs the division of military retirement benefits in divorce cases. According to this rule, a former spouse is entitled to receive a portion of the service member’s retirement benefits directly from the Defense Finance and Accounting Service (DFAS) if the marriage lasted for at least 10 years overlapping with at least 10 years of military service. If the marriage meets this criteria, the former spouse can receive payments directly from DFAS, bypassing the need for the service member to make payments to the ex-spouse directly.

Procedures Involved:

To obtain a portion of the service member’s retirement benefits under the 10/10 rule, the divorcing spouse must include a specific provision in the divorce decree known as a Qualified Domestic Relations Order (QDRO). The QDRO instructs DFAS on how to divide the retirement benefits between the service member and the former spouse. It is essential to draft the QDRO accurately and in compliance with federal and state laws to ensure its enforceability and effectiveness.

Importance of Legal Representation:

Navigating the division of military retirement benefits in divorce cases requires a thorough understanding of both state and federal laws governing such matters. Employing a family lawyer experienced in military divorce can help spouses protect their rights and ensure fair treatment in the distribution of assets, including retirement benefits. An attorney can provide valuable guidance throughout the divorce process, from negotiating a settlement to drafting legal documents such as the QDRO.

Additional Considerations:

1. Survivor Benefit Plan (SBP): The SBP provides eligible beneficiaries, including former spouses, with continued income after the service member’s death. It is essential to address SBP coverage and beneficiary designation during divorce proceedings to ensure adequate financial protection for both parties.
2. Health Care Benefits: Former spouses of military service members may be eligible for continued health care coverage under the military’s TRICARE system, known as the Continued Health Care Benefit Program (CHCBP). Understanding the availability and requirements of CHCBP can help divorcing spouses plan for their post-divorce health care needs.
3. Tax Implications: The division of military retirement benefits may have tax consequences for both parties involved. It is crucial to consider the tax implications of receiving retirement benefits or lump-sum payments and to consult with a tax advisor for guidance on managing tax liabilities effectively.
4. Division of Disability Benefits: In addition to retirement benefits, military members may receive disability benefits for injuries or illnesses incurred during their service. Disability benefits are generally exempt from division in divorce cases, as they are considered separate property. However, the treatment of disability benefits in divorce proceedings can vary depending on state law and the specific circumstances of the case. It’s important to consult with a knowledgeable attorney to understand how disability benefits may factor into the division of assets.
5. Equitable Distribution vs. Equal Division: Colorado follows the principle of equitable distribution when dividing marital property, including military retirement benefits. This means that assets are divided fairly but not necessarily equally. Factors such as the duration of the marriage, each spouse’s financial contributions, and their respective needs may influence how retirement benefits are divided. An experienced family lawyer can help spouses negotiate a settlement that takes these factors into account and achieves a fair outcome for both parties.
6. Enforcement of Division Orders: Once a divorce decree containing a QDRO is finalized, it must be submitted to DFAS for approval and implementation. DFAS will review the QDRO to ensure that it complies with federal regulations and accurately reflects the terms of the divorce settlement. Upon approval, DFAS will begin disbursing the former spouse’s share of the retirement benefits directly. If there are any issues or discrepancies with the QDRO, it may be necessary to seek legal assistance to resolve them and ensure timely payment of benefits.
7. Post-Divorce Modifications: Circumstances may change following divorce, requiring modifications to the division of military retirement benefits. For example, if the service member remarries, becomes disabled, or experiences a significant change in income, it may be necessary to revisit the terms of the QDRO. Working with an experienced family lawyer can help spouses navigate the process of modifying divorce decrees and QDROs to reflect changed circumstances and protect their interests over time.

Military Divorce Cases:

Dividing military retirement benefits in Colorado divorce cases requires careful consideration of state and federal laws, particularly the 10/10 rule governing eligibility for direct payment from DFAS. By understanding the significance of the 10/10 rule, spouses can navigate the division process more effectively and ensure a fair distribution of assets. Seeking the assistance of an experienced family lawyer is essential for protecting one’s rights and interests throughout the divorce proceedings, including the division of military retirement benefits. With knowledgeable legal representation, individuals can achieve equitable outcomes and move forward with confidence after divorce.

About the Author:

Andrew Bryant is a well-respected Colorado Springs criminal attorney who has been practicing in the area for years. A Colorado native, he returned to the home he loves after graduating from the University of Kentucky College of Law. Now, he uses the knowledge he gained as an El Paso County District Attorney to fight tirelessly for his clients’ rights. He is AV-Preeminent rated, has been recognized for his work by The National Trial Lawyers, and has been named to Best of the Springs lists by The Gazette for years.