USFSPA: Attention Must be Paid

Probably the most salient difference between a military divorce and a civilian one is that state courts divide retirement benefits ("retired pay") according to the Uniformed Services Former Spouses' Protection Act (USFSPA). This means the state courts may treat retirement pay as property and award up to 50 percent of it to the former spouse.

USFSPA permits a former spouse to receive up to 50 percent of the military members retired pay directly from the finance center, based on the number of years married concurrent with military service. Moreover, the computation of the retired pay is made based on the rank at the time of retirement, not at the time of divorce.

For purposes of a divorce settlement, retired pay is classified as property, not income. USFSPA applies to all military divorces after June 25, 1981.

USFSPA does not preclude the award of other support from retired pay. The division of retired pay may be made apart from any alimony or child support. Furthermore -- this feature most troubles some military members -- since it is property, the pay continues even after the remarriage of the former nonmilitary spouse, who is very often the wife. For a military spouse to receive retired pay he or she must serve no less than 20 years of creditable service, yet the marriage need "only to have lasted at least 10 years during which the member performed at least 10 years of creditable service."

Significantly, there is no need for the nonmilitary spouse to prove need or a "contribution to the military member's career." Moreover, there is no time limit for a former spouse to make a claim against the retired pay of a former military spouse.

Military divorces sometimes include elements that make them more complicated than civilian divorces, including but not limited to, the length of marriage during the military career as a determinant for benefits (including medical care, commissary and exchange privileges) and pre- and post-service employment (with a provision against dual compensation).

In a military marriage, the question is jurisdiction is complicated by frequent moves that make meeting residency requirements and service difficult. Some states have special provisions for service members to divorce even though they are not residents in the usual sense of the word.

USFSPA followed a Supreme Court decision the year earlier holding that that federal law barred state courts from dividing any form of military retirement pay. In McCarty v. McCarty, 453. U.S. 210 (1981), the high court ruled that the law prohibited the division and distribution of retirement benefits, according to state community property law. The McCarty case caused such an outcry among spouses of the military that Congress passed a law specifically saying that military retirement pay can be divided. The Uniformed Services Former Spouses Protection Act (USFSPA) was passed in 1982.

McCarty and USFSPA created confusion about distribution of retirement pay.

Basically, in a divorce, USFSPA mandates that the Defense Finance and Accounting (DFAS) directly pay a former spouse's share of the military retirement pay if there is at least 10 years of marriage overlapping 10 years of creditable military service. This is the Ten-Year (10/10) rule. Some state courts divide the military retirement pay for marriages of less than 10 years. In this case, however, the military spouse has to pay the former spouse directly, rather than the DFAS making the payments.

Let's say a couple were married nine years before they divorced, and for five of those years the husband was on active duty in the Air Force. In other words, the wife was a military spouse for five years.

The Ten-Year Rule states that if a court order to divide military retirement pay as property is obtained, then it may be directly paid from the military pay center to the former spouse, provided that the couple were married at least ten years during which the military spouse was in the service at least ten years.

In the above example, the military spouse was not in the service ten years and the couple were not married ten years, so she cannot get the military pay center to pay her portion of the military retirement pay directly. She must obtain her payments directly from her former spouse, in much the same way as if they were both civilians.

Alimony and child support may be paid directly from military retirement pay, but a spouse must obtain a court order requiring the payment of child support or alimony. This order must include his Social Security number. The DFAS can then make direct payments, but not more than 65 percent of a retired military member's pay may be garnished for alimony and child support.

All states permit military retired pay to be divided as marital or community property upon divorce. Both equitable distribution and community property states have one or another method of dividing military pensions. In a divorce, a civilian spouse, therefore, should consider the laws of the state of residence and the domicile state of the Service Member. Different states divide pay in different ways. For example, a court can direct that a portion of the retired pay be paid monthly upon the retirement of the military spouse.

A state has jurisdiction to divide retired pay if he or she is a legal resident of the state, or the couple reside in the state for other than military assignment, or if they consent to the court's jurisdiction in a property division action.

A court divides only that portion of the retired pay deemed marital. For example, if a military couple divorce after 10 years of marriage and at the end of his 20-year service career, ten years of his retired pay -- the time he was in the military but before he married -- is his separate property.

Retired pay earned before a marriage and after a separation is separate property, and not more than half of the retired pay may be divided.

Full medical benefits can be achieved by meeting what is called the 20/20/20 test. That means that 1) the military spouse served 20 years of creditable service, with 2) at least 20 years of marriage, and 3) at least 20 years of marriage overlapping 20 years of service. Limited privileges may accrue to former spouses of marriages that ended before April 1, 1985. In this routine, the parties 1) must have been married at least 20 years; 2) the service member must have accrued at least 20 years of service and 3) there must be at least a 15-year overlap in the years of service and the years of marriage.

USFSPA does not apply to disability benefits. A California case, Mansell v. Mansell, which was later upheld by the Supreme Court, held that while military retirement pay can be divided under USFSPA, any pay that is disability pay cannot be divided, since it was not specifically mentioned in USFSPA.

USFSPA does not apply to a civilian employee of the military. Federal law specifically holds that state courts may divide civil service retirement pay, so a former spouse's civil service pay can be divided and distributed. The state court orders must comply with federal regulations.

Civil service disability pay, however, be divided upon divorce. Unlike military disability that cannot be divided, federal law permits state courts to divide civil service disability pay. Some states hold that civil service disability pay is separate property under state law. Generally the distribution of civil service disability pay is similar to that of disability pay in the private sector, and courts take varying views as to whether it is separate or marital property. A lawyer will be able to advise about the controlling law in a given jurisdiction.

While retirement pay is subject to distribution as marital property, disability benefits are not.

While disability pay is not considered disposable and cannot be divided, a civilian spouse may still be able to receive more spousal support. Since disability pay is off limits, a court may correct the property distribution by awarding the wife more real or personal property in lieu of the portion of the retirement pay. For example, she might receive the marital home outright, or she may receive a larger proportion of any stocks, bonds, or certificates of deposit they owned as a couple. The court could order her ex-husband to be solely responsible for marital debts, as a way of compensating her for missed retirement pay.

Of course, if the money is not there, it's not there. If most of a former spouse's pay is disability pay and there is little or nothing else to use as compensation, his former spouse probably won't get her "fair share" of the marital property.

When a divorced military member retires on disability, courts have tried to protect former spouses from what is called "divestiture" of marital property. The court may adjust the division of other property, including the former husband's disposable retirement pay, in order to maintain the proportion of distribution.

Other courts have considered the reduction in disposable retirement pay to be what is called an "exceptional circumstance," allowing the court to redistribute property after the divorce, sometimes years after the divorce.

Some states allow payments to be made while the military member is still on active duty; some do not. The law permits the present value of the pension to be used as a set-off or trade against other property that the civilian spouse may receive. Thus, for example, the retired pay might be traded against a marital home. If the numbers do not align properly and equitably, one spouse can make what is called "distributive award" to the other to compensate for the inequality.

Postponement of retirement cannot be used to prevent the distribution of military retirement pay to an ex-spouse. Some courts have held that a former spouse may collect his or her portion of the retirement pay at the time of eligibility for retirement, regardless of whether the service member actually retires. This may sound complex, but it is logical. These courts use the rationale that the service member spouse cannot defeat the non-service member spouse's interest in the community property by relying on a condition within the Service Member spouse's control.

Common Questions and Answers
Q. What organization offers additional of interest to retired career military people who are planning divorces?

A. The American Retirees Association (ARA) of Redlands, California, deals the problems of USFSPA, Public Law 97-252, 10 U.S.C. Section 1408 et seq.

Q. Why is the "retired pay" as property rationale so important?

A. In most civilian divorces, property is divided. In a military marriage, this often does not include a house or other substantial assets. The military members retirement benefits are sometimes the only financial asset worth dividing. For a career military person, this retired pay may be the largest asset he or she has. In a divorce, military retired pay is property, not income. The lifetime value of a military pension can be considerable because a career military member can retire much earlier than a civilian working in the private sector.

Q. Who is covered by USFSPA?

A. USFSPA applies to both male and female members of the uniform services, regular and reserve components on active duty, or already retired in the army, navy, air force, marine corps, coast guard, national guard and reserve, public health service and National Oceanographic and Atmospheric Administration in any court of competent administration in the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the Virgin Islands, the Northern Marina Islands, the Trust Territory of the Pacific.



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Suggested Reading
Divorce & the Military II Divorce & the Military II
DIVORCE AND THE MILITARY II is the newly published comprehensive guide for military members (active duty, reserve/guard, and retired), spouses, and their attorneys, on the Uniformed Services Former SpousesŐ Protection Act (USFSPA). The USFSPA is the federal law that permits the award of military retired pay in a divorce.

Author: Marsha L. Thole and Frank W. Ault


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DIFFERENT RULES – A military divorce has its own rules regarding division of military pensions, residency requirements for filing for divorce, and certain legal protections for the military member and emergency court orders pertaining to child support.

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