Military retired pay can be divided in a Montana divorce. A federal statute, the Uniformed Services Former Spouses' Protection Act (10 U.S.C. § 1408), allows a state court to treat a member's disposable retired pay as property and divide it under that state's law. In Montana that means equitable apportionment under MCA § 40-4-202(1). The federal Act also sets limits that no state court order can exceed. This page is part of our Montana Divorce Guide.
Two Layers of Law
Section 1408(c)(1) says a court "may treat disposable retired pay payable to a member ... 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." The federal Act grants permission. It does not create a share or tell the court what is fair.
The fairness question is Montana's. The court weighs the factors described in how property is divided in Montana, including the length of the marriage and each spouse's contributions. Service that came before the marriage raises the same questions as other premarital property.
The Federal Rules at a Glance
| Subject | Rule | Source |
|---|---|---|
| What a court may divide | Disposable retired pay, treated as property of the member or of the member and spouse under the law of the court's state | 10 U.S.C. § 1408(c)(1) |
| Jurisdiction over the member | Residence other than because of military assignment, domicile, or consent | 10 U.S.C. § 1408(c)(4) |
| Direct payment of a property share (10/10 rule) | Only if the marriage lasted 10 years or more during which the member performed at least 10 years of creditable service | 10 U.S.C. § 1408(d)(2) |
| Cap on direct payments for property division | Total payable under all such court orders may not exceed 50 percent of disposable retired pay | 10 U.S.C. § 1408(e)(1) |
| Divorce before retirement (frozen benefit rule) | Retired pay is figured on the member's pay base and years of service on the date of the decree, plus cost-of-living adjustments | 10 U.S.C. § 1408(a)(4)(B) |
| Medical care for a former spouse (20/20/20) | Unremarried former spouse, married at least 20 years during which the member performed at least 20 years of creditable service, with no employer-sponsored health plan | 10 U.S.C. § 1072(2)(F) |
What Counts as Disposable Retired Pay
Disposable retired pay is the member's total monthly retired pay less certain amounts (10 U.S.C. § 1408(a)(4)(A)). The deductions include:
- Amounts owed to the United States for earlier overpayments of retired pay.
- Amounts deducted because of a court-martial forfeiture, or because of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38 (title 38 is the veterans' benefits title).
- For a member retired for disability under chapter 61, the part of retired pay computed using the member's percentage of disability.
- Amounts deducted to provide a Survivor Benefit Plan annuity to a spouse or former spouse to whom a share of retired pay is being paid under a court order.
Only what is left can be divided as property under the Act.
The 10/10 Rule Is About Who Writes the Check
After a qualifying court order is served on it, the service's pay center makes payments directly to the former spouse (10 U.S.C. § 1408(d)(1)). For a division of property, the order must specifically provide for payment of an amount, in dollars or as a percentage of disposable retired pay (10 U.S.C. § 1408(a)(2)(C)).
Direct payment of a property share is available only if the former spouse was married to the member for 10 years or more during which the member performed at least 10 years of service creditable toward retired pay (10 U.S.C. § 1408(d)(2)). That subsection limits payments "under this section," meaning payments by the pay center. It is not written as a limit on the court's authority in subsection (c). When the 10/10 overlap is missing, a share the court awards is the member's obligation to pay.
The total the pay center will pay under all property-division orders may not exceed 50 percent of disposable retired pay (10 U.S.C. § 1408(e)(1)).
Divorcing Before Retirement: The Frozen Benefit Rule
When a property division is part of a decree that becomes final before the member retires, federal law fixes the starting figure. The member's retired pay, for purposes of the division, is the amount the member would have been entitled to using the retired pay base and years of service on the date of the decree, increased by cost-of-living adjustments (10 U.S.C. § 1408(a)(4)(B)). Reserve component members are covered by a parallel provision that uses creditable service points.
In plain terms, promotions and additional years after the divorce do not enlarge the former spouse's share. An order dividing the pay of a member who is still serving has to give the pay center the information it needs to make that calculation, so check the pay center's current requirements before the order is drafted. The Act also does not authorize a court to order a member to apply for retirement or to retire at a particular time (10 U.S.C. § 1408(c)(3)).
Disability Pay and Howell v. Howell
Federal law can require a retiree to give up part of their retired pay in order to receive VA disability compensation. Because waived pay is excluded from disposable retired pay, a waiver shrinks what a former spouse receives.
In Howell v. Howell, 581 U.S. 214 (2017), a veteran waived part of his retired pay years after the divorce, and the state court ordered him to make up the former spouse's loss. The U.S. Supreme Court reversed. It held that a state court may not order a veteran to indemnify a former spouse for the reduction caused by a waiver, and that calling the order reimbursement instead of a division of property is a semantic difference. The Court added that a family court remains free to take account of the contingency that some retired pay might be waived when it calculates or recalculates the need for spousal support. Whether that helps in a particular case depends on Montana's maintenance rules and the facts.
Survivor Benefits and Health Care
A share of retired pay under the Act is not something a former spouse can sell, assign, or leave by inheritance (10 U.S.C. § 1408(c)(2)), and payments under the Act end no later than the death of the member or of the former spouse, whichever comes first (10 U.S.C. § 1408(d)(4)). Continuing income after the member's death comes from the Survivor Benefit Plan, if former spouse coverage is elected.
The deadlines are short. A member's election of former spouse coverage must be received within one year after the date of the decree (10 U.S.C. § 1448(b)(3)(A)(iii)). If a court order or a written agreement requires the election and the member does not make it, the former spouse can ask that it be deemed made, but the request must be received within one year of the date of the court order or filing involved (10 U.S.C. § 1450(f)(3)). A decree that awards survivor coverage does not carry itself out.
Health care eligibility for a former spouse turns on the overlap of marriage and service described in the table above. Other benefits have their own rules, and the service's benefits office is the right place to confirm them. For the rest of a military case, including where to file and protections for deployed members, see military divorce in Montana and our military divorce page. For other plans, see dividing retirement accounts and QDROs.
This page explains federal law and Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.