One of the most complex issues in military divorce is not custody—it is money. Specifically, retirement benefits. Military retirement pay can represent a substantial financial asset, especially in long marriages, and misunderstandings about how it is divided often lead to costly disputes.

For military families in Fairfax County and the Fredericksburg region, these issues arise frequently due to the area’s high concentration of service members and federal employment. Military divorce involves the same property division concept as civilian divorce—Virginia’s equitable distribution—but certain assets are governed by federal rules, including the Uniformed Services Former Spouses’ Protection Act (USFSPA) and specialized procedures for retirement-related division.

This article provides a practical overview of three critical topics: military retirement, the Thrift Savings Plan (TSP), and the role of the USFSPA.

Military retirement pay: is it marital property?

In Virginia, marital property is generally subject to equitable distribution—meaning the court divides property fairly, though not necessarily equally. Military retirement can be treated as marital property to the extent it was earned during the marriage.

Key concepts include:

• Marital portion: retirement earned during the marriage
• Separate portion: retirement earned before marriage (or, in some cases, after separation)

This is important because many service members believe retirement is “their” asset, while many spouses assume they automatically receive half. The reality depends on the timeline of the marriage, the length of service, and how retirement was accrued.

The USFSPA: what it does (and what it does not do)

The USFSPA is a federal law that allows state courts to treat military retirement pay as divisible property in divorce. It is best understood as a “permission statute.” Without it, state courts would have limited authority to divide military retired pay.

However, the USFSPA does not automatically:

• grant a spouse a specific percentage
• guarantee direct payments
• determine how much the spouse receives
• create an entitlement without a court order

Instead, it allows the court to divide retirement under state law (such as Virginia’s equitable distribution rules), and it creates a framework for enforcement.

In Fairfax and Fredericksburg cases, many disputes arise from misunderstandings about what the USFSPA guarantees. The statute provides a mechanism—but the specific outcome depends on the case details and the divorce order.

The “10/10 rule”: one of the most misunderstood concepts

A very common myth is that a spouse must have been married for 10 years to receive anything from military retirement. That is not accurate.

The 10/10 rule relates to direct payment from DFAS (Defense Finance and Accounting Service), not entitlement.

In simplified terms:

• If the marriage lasted at least 10 years, and
• the service member performed at least 10 years of creditable service during the marriage,
  then DFAS may be able to pay the former spouse directly under certain conditions.

But even if the 10/10 rule is not met, a spouse may still receive a share of retirement through other enforcement methods. The rule affects how payment is administered, not whether retirement can be divided at all.

How the military retirement share is commonly calculated

In many cases, the marital share is calculated using a formula that considers:

• the length of marriage overlapping with service
• the total length of service
• the portion of retirement earned during that overlap

Courts and agreements often use a “marital fraction” approach:

• numerator = months of marriage during service
• denominator = total months of service
  Then the former spouse may receive a percentage of that marital portion.

However, this is not automatic. The parties can negotiate terms, and the court will evaluate fairness under the circumstances. Strong drafting matters because retirement orders must be specific enough to be enforceable.

The Thrift Savings Plan (TSP): how it fits into divorce

The TSP is a retirement savings plan for federal employees and service members. Unlike military retired pay, which is a stream of future payments, the TSP is an account with a balance—similar to a 401(k).

In Virginia divorce, the TSP is typically treated as a marital asset to the extent contributions occurred during the marriage. Division often requires:

• identifying the marital portion
• determining whether gains/losses are included
• using a proper court order to divide the account

Because the TSP is an account rather than a pension stream, division may be more straightforward in some cases—but mistakes in documentation can still lead to delays or unfair distribution.

Survivor Benefit Plan (SBP): often overlooked

The Survivor Benefit Plan (SBP) is one of the most overlooked parts of military divorce. SBP is essentially an annuity that can provide continued income to a former spouse if the service member dies after retirement.

Without SBP coverage, a former spouse may lose retirement payments upon the service member’s death, depending on how the order is structured. In many cases, spouses negotiate SBP terms as part of the settlement.

This issue is particularly important in long marriages or when retirement benefits are a primary financial asset.

Why drafting matters: “military divorce paperwork” is not standard divorce paperwork

Even when spouses agree on retirement division, the agreement must be translated into enforceable legal language. Military retirement and TSP division often require:

• precision in percentage definitions
• clear identification of marital and separate portions
• detailed enforcement language
• compliance with federal requirements

A vague agreement is not simply inconvenient—it can be unenforceable. In Fairfax and Fredericksburg, military-connected divorces often require careful attention to these details to avoid costly post-divorce litigation.

Conclusion

Military retirement and TSP accounts can represent a major portion of marital wealth, and the USFSPA plays a central role in how those benefits are divided during divorce. Understanding the difference between entitlement and enforcement, the meaning of the 10/10 rule, and the importance of proper drafting can prevent serious financial consequences. If you are navigating a military divorce in Fairfax County or the Fredericksburg region and need guidance on retirement division, AMG LAW PLC can help you evaluate options and pursue an outcome that protects your long-term financial interests.