Military and Federal Pensions in an Illinois Divorce: USFSPA, the 10/10 Rule and Survivor Benefits

By the FigureMyTax Editorial Team · How we calculate

Illinois divides military retirement earned during the marriage as marital property in just proportions, within federal limits. Federal law caps all court-ordered payments at 50 percent of disposable retired pay.

Is military retirement divided in an Illinois divorce?

Yes, as marital property to the extent acquired during the marriage (750 ILCS 5/503), 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 Illinois?

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)). Illinois sets no percentage of its own, so the federal limit is the ceiling that applies; the Illinois pension division calculator shows the share against it.

What is the 10/10 rule in Illinois?

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 Illinois?

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.

Do military residents qualify to file in Illinois?

Yes. A spouse stationed in Illinois while a member of the armed services, with that presence maintained for 90 days, meets the residence rule (750 ILCS 5/401(a)).

What about federal civilian pensions in Illinois?

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).

Can survivor benefits be part of the order in Illinois?

They can be addressed in the order, but the plan’s own rules and federal law decide what is available, so ask the plan before the judgment is drafted and name each benefit you want in the order.

What does this page not cover in Illinois?

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 Illinois decisions on them for this page. Ask the plan or a licensed attorney. See the Illinois property division calculator for the rest of the estate.

Frequently asked questions

Official sources

• 750 ILCS 5/503: disposition of property and debts
• Public Act 100-871: pension benefits as marital property
• 750 ILCS 5/504: maintenance
• 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
• 750 ILCS 5/401: dissolution of marriage
• 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 Illinois statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed Illinois attorney.