How Is Military Retired Pay Divided in a South Carolina Divorce?

A military retirement is often the largest asset in a divorce involving a service member. Even a modest share — a few hundred dollars a month — paid for the rest of a retiree’s life adds up to real money. It is also the asset most often divided badly, because two bodies of law govern it and they do not talk to each other.

Federal law decides what can be divided, whether the government will pay the former spouse directly, and what the order must say before the Defense Finance and Accounting Service (“DFAS”) will honor it. South Carolina law decides how much the former spouse receives. An order that gets the South Carolina half right and the federal half wrong can be correct, enforceable against the member — and useless at DFAS.

This is the broad primer. For Chapter 61 medical retirements and Concurrent Retirement and Disability Pay, read it alongside our article on the 2026 Chapter 61 / CRDP change. The basics of military divorce are on our military divorce practice page and in the military divorce FAQ.

Federal law grants the permission; South Carolina does the dividing

In 1981 the Supreme Court held that federal law barred states from dividing military retired pay, and Congress responded with the Uniformed Services Former Spouses’ Protection Act (“USFSPA”). The Supreme Court of South Carolina told that history in Coon v. Coon, 364 S.C. 563, 614 S.E.2d 616 (2005).

The USFSPA permits a court to treat a member’s disposable retired pay “either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 U.S.C. § 1408(c)(1). States choose. “South Carolina has chosen to do so.” Coon, 364 S.C. at 567.

South Carolina made that choice in two steps. In Tiffault v. Tiffault, 303 S.C. 391, 401 S.E.2d 157 (1991), the Supreme Court recognized that a military spouse often moves from post to post and gives up a career of their own, and held: “We conclude vested military retirement benefits constitute an earned property right which, if accrued during the marriage, is subject to equitable distribution.” 303 S.C. at 393. Three years later, in Ball v. Ball, 314 S.C. 445, 445 S.E.2d 449 (1994), the Court extended the rule to a soldier divorced at about eighteen years, before his retirement vested: “Accordingly, a nonvested military pension plan is marital property.” 314 S.C. at 447. The Court has since summarized the rule broadly: a retirement benefit earned during the marriage, “whether vested or nonvested, is deferred compensation, and thus, is marital property.” Wilburn v. Wilburn, 403 S.C. 372, 381, 743 S.E.2d 734 (2013).

So the starting point in South Carolina is settled. The fights are over the federal limits on that permission.

“Disposable retired pay” is a defined term

What a court may divide is not the member’s gross retired pay. It is “disposable retired pay,” which the statute defines as total monthly retired pay less certain amounts — among them amounts owed to the United States, court-martial forfeitures, retired pay waived “in order to receive compensation under title 5 or title 38” (the VA disability waiver), the disability-computed portion of a Chapter 61 retirement, and Survivor Benefit Plan premiums for coverage of the former spouse who is receiving the share. 10 U.S.C. § 1408(a)(4)(A).

Two further limits matter in almost every case:

• A fifty-percent cap. The total paid under all court orders dividing retired pay “may not exceed 50 percent of such disposable retired pay.” § 1408(e)(1). The Supreme Court of South Carolina has noted that the limit applies whether the former spouse is paid by DFAS, by the member, or both. Coon, 364 S.C. at 567.
• No forced retirement. The statute “does not authorize any court to order a member to apply for retirement or retire at a particular time.” § 1408(c)(3). A spouse whose share depends on a retirement that has not happened yet waits for it.

The 10/10 rule is about who writes the check

No rule in this area is more widely misunderstood. The “10/10 rule” says that if the former spouse was not married to the member “for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay,” DFAS will not make direct payments of the property share. 10 U.S.C. § 1408(d)(2).

Direct payment is generally what people want: a check each month from the federal government instead of from an ex-spouse, and no reason for the two of them to deal with each other twenty years from now when the member finally retires. But that is all the rule does. It does not say a spouse married for fewer than ten years of service is not entitled to a share; the family court’s authority to divide comes from § 1408(c)(1), which has no ten-year requirement. When the overlap is short, the court can still award a share of the marital portion, and the order requires the member to pay it.

That arrangement has a tax wrinkle people miss. Military retired pay based on length of service is taxable income. IRS Publication 525. Without direct payment, the whole check is paid to the member, who then passes the former spouse’s share along. An agreement that just says “12 percent of gross retired pay” can leave the member carrying the tax on money they never kept. The agreement should say how the share is computed and who bears the tax on it — and both sides should get tax advice before signing.

DFAS decides the 10/10 question itself, “exclusively” from the dates of marriage and divorce. DoD Financial Management Regulation, Vol. 7B, Ch. 29, ¶ 6.4.2 (Feb. 2026).

Even with direct payment there is a gap. Payments begin no later than 90 days after effective service of the order — or, if the member is not yet retired, no later than 90 days after the member first becomes entitled to retired pay. § 1408(d)(1). A good agreement covers the gap: the member pays the share directly until DFAS takes over.

The marital fraction: how the share is measured

South Carolina does not mandate a formula. In Ball, the Supreme Court said: “It is within the discretion of the Family Court to determine, from the facts of each case, what portion, if any, of the benefits spouse is entitled to receive.” 314 S.C. at 447. There, the family court awarded the wife 23 percent, which “reflects the ratio of the number of years the parties were married to the total number of years of Husband’s military service.” 314 S.C. at 448. The Court affirmed.

In practice, most South Carolina cases — litigated and settled — express the share as a coverture or “marital” fraction multiplied by a percentage, usually fifty percent:

Former spouse’s share = 50% × (months of creditable service during the marriage ÷ total months of creditable service)

A composite: a spouse married for twelve years of a soldier’s twenty-two-year career has a marital fraction of 144 ÷ 264, or about 54.5 percent. Half of that is roughly 27.3 percent of disposable retired pay.

The fraction carries several decisions that clients rarely notice and that matter a great deal:

• Where the numerator stops. The date of marriage is usually easy. The end point is a choice — the filing date, which fixes the marital estate under South Carolina law, S.C. Code Ann. § 20-3-630(A), or the date of the decree. DFAS allows the numerator to run to separation, to divorce, “or a different time period as determined by the court.” FMR Vol. 7B, Ch. 29, ¶ 2.11. Pick one on purpose.
• What the denominator measures. Before 2017, the denominator was usually the member’s total service at retirement. For most divorces now, the frozen benefit rule (next section) changes the math.
• Months, not years. For an active-duty retirement, DFAS requires the formula’s elements “in terms of whole months.” Id. ¶ 2.11.1.

With the right records — the service history or point statement, the dates of marriage and filing, and the member’s pay data — the fraction is a mechanical exercise. A lawyer working from those documents can usually tell you, with a high degree of confidence, what the share is likely to be, and that is the information you need to decide whether to settle.

Settlement does not have to mean dividing the check. A member can keep the whole retirement and give the other spouse more of something else — a larger share of the home equity, for example — in exchange for a complete waiver of any claim to the retirement. That is a common and often sensible trade. The hard part is the price: putting a present cash value on a stream of payments that may not start for years is a valuation question, and in a large case it may need an expert.

The phrase most likely to get an order rejected is the one lawyers reach for first. DFAS “cannot honor awards based on the value of the member’s retired pay that has ‘accrued’ during the marriage because military retired pay does not accrue over time,” and it will not honor an award of a percentage of the “marital portion” unless the order also supplies every variable needed to compute it. Id. ¶¶ 6.14, 6.15. As DFAS puts it: “Military retired pay is not a pension.” Id. ¶ 6.14. Write the numbers into the order.

The frozen benefit rule for divorces after December 23, 2016

Before 2017, a former spouse’s percentage was typically applied to the member’s actual retired pay at retirement — including the raises and promotions that came after the divorce. Congress changed that in the National Defense Authorization Act for Fiscal Year 2017.

For a property division in a decree that “becomes final prior to the date of a member’s retirement,” the retired pay to be divided is now the amount “to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree,” increased by the cost-of-living adjustments between the divorce and retirement and after retirement. 10 U.S.C. § 1408(a)(4)(B)(i). For Guard and Reserve members, the measure is the retired pay base and “creditable service points on the date of the decree.” § 1408(a)(4)(B)(ii). The amended rule applies to divisions in decrees that become final after December 23, 2016. Pub. L. No. 115-91, § 624(b)–(c), 131 Stat. 1430 (2017) (set out as a note to 10 U.S.C. § 1408).

The former spouse shares in the retirement as it stood on the day of the divorce, not the career that came afterward: “the former spouse does not benefit from the member’s pay increases due to promotions or increased service time after the divorce.” FMR Vol. 7B, Ch. 29, ¶ 2.13.

The rule does not apply when the member has already retired before the divorce becomes final, or when a Reserve member is already receiving retired pay or eligible to receive it (generally at age 60). Id. ¶ 8.1 note.

What the order has to supply

DFAS will not reconstruct the frozen numbers. For a member who entered service on or after September 8, 1980, the order must state the award, the member’s high-3 “at the time of divorce, dissolution, legal separation, or annulment (the actual dollar figure),” and the member’s years of creditable service — or, for a reservist, Reserve retirement points — on that date. Id. ¶ 8.3.2. (Members who entered before that date are measured by pay grade instead. Id. ¶ 8.3.1.)

That means evidence. The high-3 is an average of the member’s highest thirty-six months of basic pay, and the cleanest proof is the member’s Leave and Earning Statements for the thirty-six months before the divorce, together with the service records that establish the pay entry base date. Get them in discovery; an order that recites a high-3 nobody verified is a common post-divorce problem.

An invented illustration: a member divorces at fourteen years of service, married for ten of them, with a high-3 of $5,000 a month. The frozen retired pay is 2.5 percent × 14 × $5,000, or $1,750 a month plus later cost-of-living adjustments, and the former spouse’s share is half of 10/14 of that — about $625. Under the pre-2017 approach, a member who went on to retire at twenty years with a high-3 of $6,500 would have had the percentage applied to $3,250 a month. The statute now assigns that post-divorce career to the member.

Jurisdiction: a Fort Jackson assignment is not enough

Columbia sees many divorces between a spouse who lives here and a service member who is here only on orders. The family court may have jurisdiction to grant the divorce and decide custody. Dividing the retirement requires more.

A court may not divide disposable retired pay “unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.” 10 U.S.C. § 1408(c)(4).

The South Carolina Court of Appeals read the consent clause narrowly in Williams v. Williams, 436 S.C. 550, 873 S.E.2d 785 (Ct. App. 2022). The member lived out of state, conceded jurisdiction over everything else, and objected to jurisdiction over his retirement from his first filing onward. The court held that “the consent required by section 1408 is to the court’s jurisdiction over the military retirement benefits specifically,” found he had not given it, and reversed the division of his retirement. 436 S.C. at 595–96. Other states disagree, and the opinion acknowledges the split, but in South Carolina Williams is the published authority.

The order should state the basis for jurisdiction: “[i]f the court order states that it has USFSPA jurisdiction, it must state the basis for the finding, i.e., member’s residence, member’s domicile or member’s consent.” FMR Vol. 7B, Ch. 29, ¶ 6.5. And when the member’s domicile is elsewhere and the member will not consent, decide where to file before the complaint is filed, not after an appeal.

VA disability, Howell, and what the order cannot promise

Retired pay waived to receive VA disability compensation drops out of disposable retired pay — and out of the former spouse’s share. In Mansell v. Mansell, 490 U.S. 581 (1989), the Supreme Court held that the USFSPA “does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” 490 U.S. at 594–95.

Some state courts responded by ordering the veteran to make up the loss when a post-divorce waiver shrank the former spouse’s share. Howell v. Howell, 581 U.S. 214 (2017), ended that: the answer to the indemnification question is “no.” 581 U.S. at 216. Calling it reimbursement rather than a property division did not help: “The difference is semantic and nothing more.” Id. at 222. “All such orders are thus pre-empted.” Id.

The former spouse's share of a military retirement is only as secure as the member's next VA rating.

That reality changes how a case should be built, especially when a member is still serving and a VA claim is pending or likely:

• Value the risk at the start. The Court said a family court, “when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived.” Id. at 222. If a significant rating is likely, that can justify a different allocation of the house, the TSP or other assets.
• Use support, not property. The same passage notes that a court may “take account of reductions in value when it calculates or recalculates the need for spousal support.” Id. Disability benefits are treated in South Carolina as income rather than marital property, Wilburn, 403 S.C. at 381, and the Court in Howell expressly left room for them in the support analysis.
• Be careful with “savings clauses.” Many agreements still promise that the member will not reduce the former spouse’s share and will pay the difference if they do. After Howell, a family court cannot enforce that promise as a dollar-for-dollar replacement of retired pay waived for disability. Whether a version negotiated by the parties fares better is not a question we would stake a settlement on.

Chapter 61 medical retirements and Concurrent Retirement and Disability Pay are a separate layer, and the rules changed in February 2026. If a medical board is underway, get the board and VA records early; depending on how the retirement is computed, the divisible share can shrink substantially, sometimes to nothing. Our Chapter 61 / CRDP article covers them, including the Combat-Related Special Compensation election.

The Survivor Benefit Plan and the one-year deadline

The former spouse’s share of retired pay ends at the death of either the member or the former spouse. 10 U.S.C. § 1408(d)(4). Without survivor coverage, a former spouse who has received a share of retired pay for years can lose all of it the month the member dies. The Survivor Benefit Plan (“SBP”) is the federal answer, and it is easier to lose than to get.

The court can require it. “A court order may require a person to elect (or to enter into an agreement to elect) under section 1448(b) of this title to provide an annuity to a former spouse.” 10 U.S.C. § 1450(f)(4).

It is not automatic. DFAS’s regulation says it plainly: a court order requiring former spouse coverage “is not self-executing.” FMR Vol. 7B, Ch. 29, ¶ 6.10 note. Someone has to file.

There are two one-year clocks. A member already participating in the plan who elects former spouse coverage must get the written election to the service “within one year after the date of the decree of divorce, dissolution, or annulment.” 10 U.S.C. § 1448(b)(3)(A)(iii). If the member does not make the election, the former spouse can ask that it be “deemed” made — but only if the service receives the request “within one year of the date of the court order or filing involved.” § 1450(f)(3)(C). The form is DD Form 2656-10, submitted with a copy of the order. FMR Vol. 7B, Ch. 29, ¶ 6.10 note. The former spouse should not wait for the member to act. Miss the year and the coverage is likely gone for good.

The numbers. The standard annuity is generally 55 percent of the base amount the member elected. 10 U.S.C. § 1451(a)(1). For most members who entered service on or after March 1, 1990 and retire for longevity, the premium is 6.5 percent of that base amount. 10 U.S.C. § 1452(a)(1)(A)(iii). The premium comes off the top: when the former spouse receiving the share is the SBP beneficiary, the premium is deducted before disposable retired pay is computed, so, absent a different arrangement between the parties, both effectively bear part of it. § 1408(a)(4)(A)(iv).

It is negotiable. The statute lets a court require SBP coverage; it does not make the court do so. In our experience, from the member’s side, SBP is often expensive compared with ordinary term life insurance that names the former spouse, and in many settlements the better answer is life insurance in an amount tied to the share, with SBP expressly waived. From the former spouse’s side, SBP is the only way the monthly payment survives the member. Either way, the agreement should say what the parties chose and who pays for it.

The limits. Only one former spouse can be covered, and former spouse coverage displaces coverage for a later spouse. 10 U.S.C. § 1448(b)(2)(B)–(C). An annuity to a former spouse who remarries before age 55 stops on the remarriage, and resumes if that marriage ends. § 1450(b)(2)–(3). And once a court-ordered election is made, the member cannot change it without a new court order. § 1450(f)(2).

Guard, Reserve and Blended Retirement members

Points, not years

A Guard or Reserve retirement is earned in points — a point for each day of active service, plus points for drills and other duty — and the points are converted to years by dividing by 360. 10 U.S.C. § 12733. Retired pay generally begins at age 60, earlier for members with qualifying active service after January 28, 2008. 10 U.S.C. § 12731(f).

The marital fraction for a Reserve retirement has to be stated in points, not months: DFAS requires that for a Reserve retirement, “the elements must be expressed in terms of Reserve retirement points.” FMR Vol. 7B, Ch. 29, ¶ 2.11.2. That means the order needs the points earned during the marriage, which come from the member’s retirement point statement, and under the frozen benefit rule, the points as of the divorce. A Guard member who spent part of the marriage on active orders and part drilling can have a point history that does not track the calendar at all, which is why we get the point statement before negotiating the fraction. Points earned before the marriage are not marital, and neither are points earned after the case is over; and because a Guard or Reserve retiree usually does not draw retired pay until 60, the former spouse’s share may not start for a long time.

The Blended Retirement System

Members who entered service on or after January 1, 2018, and those who opted in during the election period, are under the Blended Retirement System (“BRS”). Their retired pay multiplier is 2 percent per year instead of 2.5. 10 U.S.C. § 1409(b)(4). In exchange, the government contributes to the member’s Thrift Savings Plan account. 5 U.S.C. § 8440e(e). Two consequences for divorce:

• The TSP matters more. Under BRS, part of the member’s retirement value lives in the TSP, which is divided by a separate order. To be enforceable against the TSP, a retirement benefits court order must “expressly relate” to the TSP, be written in terms suited to an account rather than a benefit formula, and, when the member has both civilian and uniformed services accounts, “expressly identify the account to which it relates.” 5 C.F.R. § 1653.2(a)(1). The TSP’s own rules govern, 5 C.F.R. § 1653.3(a), so a private-plan QDRO form will not work.
• Watch for the lump sum. A BRS retiree may elect to take part of retired pay as a lump sum. 10 U.S.C. § 1415. The lump sum is divisible retired pay, but DFAS divides only payments made after it has approved the former spouse’s application; installments paid before that are not divided retroactively. FMR Vol. 7B, Ch. 29, ¶ 3.7. A former spouse may apply any time after the order is entered and receive conditional approval before the member retires. Id. ¶¶ 4.4–4.5. Apply early.

What the order must say for DFAS to accept it

DFAS does not interpret orders generously, and it does not fix them. It “does not have the authority to correct errors in court orders,” and it will use the figures in the order even if they differ from the member’s actual figures. FMR Vol. 7B, Ch. 29, ¶ 6.16. Every variable must be in a single order, because “the order enforced must stand on its own.” Id. ¶ 8.4. In our practice, the approved agreement or decree sets the terms, and a separate military pension division order — usually prepared after the agreement is approved by someone who drafts DFAS-compliant orders — puts them in the form DFAS will honor. The decree should also keep the court’s jurisdiction open to enter or correct that order.

The former spouse then applies with DD Form 2293 and a copy of the order certified by the clerk of court. FMR Vol. 7B, Ch. 29, ¶ 4.1.1. A percentage award automatically shares in later cost-of-living adjustments. 10 U.S.C. § 1408(d)(8).

One more trap: an agreement between the parties can contain conditions, but the order served on DFAS must be a clean, unconditional award.

What this article is not

This is general information about a technical and changing area of federal and South Carolina law, not advice about your case. The share a court awards, the right end date for the marital fraction, whether a VA claim should change the allocation of other assets, and whether SBP coverage is worth its cost all depend on dates, service records and facts specific to your family. Federal rules and DFAS’s regulation in this area have changed several times in the last decade, most recently in 2026. If you or your spouse is serving, retired or in the Guard or Reserve, schedule a consultation before you sign an agreement or ask the court to divide the retirement; it is far cheaper to draft the order correctly once than to reopen a final decree. None of this is the end of the world. It is a set of rules, and with the right documents in hand, they produce answers you can plan around.