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

By the FigureMyTax Editorial Team · How we calculate

South Carolina treats vested military retirement benefits accrued during the marriage as marital property, within federal limits. Federal law caps all court-ordered payments at 50 percent of disposable retired pay, and direct payment needs a 10-year overlap.

Is military retirement divided in a South Carolina divorce?

Yes. The Court of Appeals held vested military retirement benefits accrued during the marriage are marital property under the equitable apportionment statute because they fit none of the exclusions, and in that case the trial court valued the pension and found only one-fourth of it marital (Martin v. Martin). 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 South Carolina?

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

What is the 10/10 rule in South Carolina?

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 South Carolina?

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 servicemembers qualify to file in South Carolina?

Yes. For a plaintiff or defendant stationed in the State on active duty, residence means continuous presence for the period required, regardless of intent to remain (S.C. Code 20-3-30); see the South Carolina divorce residency and where to file post.

What about federal civilian pensions in South Carolina?

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).

What does this page not cover in South Carolina?

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

Frequently asked questions

Official sources

• S.C. Code 20-3-620: apportionment factors
• S.C. Code 20-3-630: marital property; nonmarital property
• Asmussen v. Asmussen, No. 2011-UP-301 (S.C. Ct. App. 2011) (unpublished): retirement benefits as marital property
• Martin v. Martin, 296 S.C. 436, 373 S.E.2d 706 (Ct. App. 1988): military retirement
• 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
• S.C. Code 20-3-30: residence requirement

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