Military and Federal Pensions in a Delaware Divorce: USFSPA, the 10/10 Rule and Survivor Benefits

By the FigureMyTax Editorial Team · How we calculate

Delaware divides military retirement earned during the marriage in just proportions, within federal limits. Federal law caps all court-ordered payments at 50 percent of disposable retired pay, and the military pays directly only after a 10-year marriage and service overlap.

Is military retirement divided in a Delaware divorce?

Delaware divides marital property, which includes property acquired during the marriage (13 Del. C. 1513), and federal law lets a court treat disposable retired pay as property of the member alone or of the member and spouse under the law of the court’s jurisdiction, but only if the court has jurisdiction over the member through residence other than because of military assignment, domicile or consent (10 U.S.C. 1408(c)).

What is the 50% federal limit in Delaware?

The total amount of disposable retired pay payable under all court orders may not exceed 50 percent of the disposable retired pay (10 U.S.C. 1408(e)(1)). Delaware sets no percentage of its own, so the federal limit is the ceiling that applies; the Delaware pension division calculator shows the share against it.

What is the 10/10 rule in Delaware?

Direct payment from the military to a former spouse is not available, to the extent the order treats retired pay as property, unless the spouses were married 10 years or more during which the member performed at least 10 years of service creditable for retired pay (1408(d)(2)). The rule limits payments made by the military under section 1408; it does not by itself say a court cannot divide the pay, so an order should say how a spouse who misses the test will be paid. The calculator checks your overlap months.

How does a military order get paid in Delaware?

After effective service on the Secretary concerned of a court order that specifically provides for payment of a share of disposable retired pay to a spouse or former spouse, the Secretary makes payments, subject to the section’s limits (1408(d)(1)). A general property award is not enough; the order must specify the amount or fraction.

What about military service and Delaware residence?

A member of the armed services stationed in Delaware for six continuous months qualifies for the Family Court’s jurisdiction over a divorce (1504(a)), which can matter to where the case is filed.

What about federal civilian pensions in Delaware?

Federal law provides that payments under the Civil Service Retirement System and the Federal Employees Retirement System are paid, in whole or in part, to another person to the extent expressly provided in the terms of a court decree of divorce, annulment or legal separation or a court order or court-approved property settlement incident to one (5 U.S.C. 8345(j); 5 U.S.C. 8467).

How is the 10-year test counted in a Delaware military divorce?

The calculator uses months of marriage that overlapped with military service and compares them with 120 months (10 years) for direct payment from the military. Years of service before the marriage do not count toward the overlap, though they can count toward the retired pay itself.

What does this page not cover in Delaware?

Veterans’ disability benefits, survivor benefits for a former spouse and tax treatment are separate questions governed by federal law and the plan, and we did not read the Delaware decisions on them for this page. Ask the plan or a licensed attorney. See the Delaware property division calculator for the rest of the estate.

Frequently asked questions

Official sources

• Delaware Code Title 13, chapter 15: 13 Del. C. 1513 disposition of marital property
• 10 U.S.C. 1408: military retired pay in divorce
• 26 U.S.C. 414(p): qualified domestic relations orders
• 29 U.S.C. 1056(d)(3): ERISA domestic relations orders
• 5 U.S.C. 8345(j): CSRS court orders
• 5 U.S.C. 8467: FERS court orders

This is general information, not legal advice. It is based on the cited Delaware statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed Delaware attorney.