The Uniformed Services Former Spouse Protection Act, or USFSPA, provides legal protections and benefits to the former spouses of military members. USFSPA is best known to some as the law that entitles former spouses to claim a portion of the service member’s retirement pay, medical benefits, and other military benefits.
The Uniformed Services Former Spouse Protection Act
Legal authority for USFSPA is found in Title 10, United States Code Section 1408. The Defense Finance and Accounting Service (DFAS) official site says the act accomplishes two important things.
It establishes or recognizes the right “of state courts to distribute military retired pay to a spouse or former spouse” and it creates an avenue of enforcement via the Department of Defense. The act DOES NOT automatically award a portion of military retired pay to a former spouse, as we’ll explain below.
What The Act Does
The Uniformed Services Former Spouse Protection Act not only establishes the right of state courts to divide “disposable military retired pay” between a former spouse and the service member, it also allows former spouses to get a portion of that retired pay “directly from the government in some circumstances,” according to DFAS.
It also allows qualifying former spouses to have access to military treatment facilities for healthcare purposes. It grants the right for some spouses to have access to BX/PX facilities on base, plus commissary access.
What The Uniformed Services Former Spouse Protection Act Does Not Do
The Uniformed Services Former Spouse Protection Act doesn’t provide automatic or standardized deductions from military retirement pay. It does NOT require state courts to rule in favor of the former spouse, nor does it award a “pre-determined share” of military retirement pay to a former spouse.
There is no federal formula for dividing retirement pay in such cases, nor does the Act require “an overlap of military service and marriage as a prerequisite to division of military retired pay as property”.
Furthermore, the Uniformed Services Former Spouse Protection Act “prevents a court from treating retired pay as the property of the service member and spouse”.
That’s unless the court has legal authority over the service member because there is consent given to the court, or because the court has authority over the service member based on the location of the member’s home or other factors.
The Uniformed Services Former Spouse Protection Act, as you might realize from the above, does not direct state courts on how to make a determination on dividing retirement pay between the member and former spouse.
The Act, as stated above, allows direct payment of retirement pay to a former spouse, but ONLY in cases where there is a court order or settlement which is both approved by the court and which specifically mentions such an arrangement that meets any of the following motivations for the arrangement:
- Child support
- Division of retired pay as property if the former spouse was married to the member for 10 years or more, during which time the member performed 10 years or more of creditable service, and the order expresses payment in dollars or a percentage of the member’s disposable retired pay
When any of the following events occur, direct payments may be terminated:
- Terms of the court order are satisfied
- Death of the retired service member
- Death of the former spouse
In cases where the court has approved a direct payment to the former spouse, the following steps must be taken by the former spouse:
- Submission of DD Form 2293, “Application for Former Spouse Payments from Retired Pay” to the branch of service the retiree served under
- A copy of the court order with the specific order mentioning direct payment
- Other supporting evidence that there is a requirement of payment for child support, alimony or division of property, certified by an official of the issuing court within the previous 90 days
In kind, the Defense Finance and Accounting Service is required to take several actions:
- DFAS will notify the servicemember in writing at the last known address
- DFAS considers any response received from the service member
- DFAS reserves the right to reject any request for direct pay that doesn’t meet the requirements for doing so
- DFAS will not honor the court order if it is set aside, modified, superseded, or shown to be “defective”
- 90 days after “effective service”, the Defense Finance and Accounting Service will make payment to the former spouse OR notify the former spouse why the court order wasn’t honored
The 10/10 Rule
In order for military retirement pay to be divided between a veteran and former spouse, DFAS rules state that the couple must have been “married to each other for 10 years or more during which the member performed at least 10 years of military service creditable towards retirement eligibility”.
This is known as the 10/10 rule but it does NOT apply to how the court enforces the payment of alimony or child support.
What You Need To Know
Service members have certain protections under the Act, too. When retirement pay or a portion of it is awarded to a former spouse, the award must be either a specific fixed dollar amount according to DFAS, or it must be listed as a percentage of retirement pay. This is calculated from the gross amount, minus any permitted deductions.
The Defense Accounting and Finance Service states clearly that in cases where the couple gets a divorce while the servicemember is still on active duty, the former spouse may be awarded a “hypothetical” amount. “
An award of a percentage of a member’s retired pay is automatically construed under the USFSPA” DFAS states, “as a percentage of disposable retired pay. A Qualified Domestic Relations Order is not required to divide retired pay as long as the former spouse’s award is set forth in the pertinent court order.”
In 2017, the National Defense Authorization Act revised the definition of “disposable pay” for the purpose of making USFSPA calculations.
Divorces with orders that become final before the military member’s retirement and entered after December 23, 2016, disposable income is limited to what DFAS describes as “the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order”.
This amount may be increased by cost-of-living amounts granted to military retirees from the time of the divorce to the date the member is officially retired from military service.
Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News
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