In a divorce, property division is rarely straightforward. Even splitting money in the bank can be complex, and then there’s the matter of assets, debts, frequent flyer miles and credit card points — even pets. As FindLaw explains, past earnings, earning power, needs and misconduct can all play a part in who gets what.
If one spouse is or was in the military, the question of a military pension further complicates matters, and its so-called “ten-year rule” is frequently misunderstood.
Property division laws
Property division in Georgia relies on distinguishing marital property and individual property. Marital property generally includes assets acquired during marriage while individual property typically encompasses the items you owned coming into the marriage. Individual property can also include trusts, gifts or inheritances intended for one spouse, and a couple can decide together that certain other items are individual property. In Georgia, separate assets typically remain separate while a couple splits marital property as fairly as possible through spousal negotiation, mediation or court.
Georgia Bar’s Family Law Review explains that in the past, the U.S. Supreme Court ruled that Congress’ silence on military pensions in divorce meant that state courts could not divide it — effectively defining it as individual property. Congress reacted by granting state courts the authority to decide this issue for themselves in the Uniformed Services Former Spouse Protection Act. The act included a provision that both the marriage and military service consist of at least ten years before a pension becomes marital property.
States respond differently to this rule, with the strictest requiring that these ten years overlap. This means that a spouse would only be able to access a share of the pension if married for ten years or more during ten or more years of a spouse’s military service.
Thankfully for military spouses, and to the dismay of many service members, Georgia interprets this rule more loosely. The ten-year rule still applies, but the years do not have to be contemporaneous. This means that a woman could marry a man about to leave a ten-year military career, and as long as the marriage lasts at least that long, she may be entitled to a share in his pension.