Military & Divorce: Uniformed Services Former Spouse's Protection Act (USFSPA):
US Code : Title 10, Section 1408
Sec. 1408. Payment of retired or retainer pay in compliance with
court orders
- (a)
Definitions. - In this section:
- (1)
The term ''court'' means -
- (A)
any court of competent jurisdiction of any State, the
District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the Virgin Islands, the Northern Mariana
Islands, and the Trust Territory of the Pacific Islands;
- (B)
any court of the United States (as defined in section 451
of title 28) having competent jurisdiction;
- (C)
any court of competent jurisdiction of a foreign country
with which the United States has an agreement requiring the
United States to honor any court order of such country; and
- (D)
any administrative or judicial tribunal of a State
competent to enter orders for support or maintenance (including
a State agency administering a program under a State plan
approved under part D of title IV of the Social Security Act),
and, for purposes of this subparagraph, the term ''State''
includes the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, and American Samoa.
- (2)
The term ''court order'' means a final decree of divorce,
dissolution, annulment, or legal separation issued by a court, or
a court ordered, ratified, or approved property settlement
incident to such a decree (including a final decree modifying the
terms of a previously issued decree of divorce, dissolution,
annulment, or legal separation, or a court ordered, ratified, or
approved property settlement incident to such previously issued
decree), or a support order, as defined in section 453(p) of the
Social Security Act (42 U.S.C. 653(p)), which -
- (A)
is issued in accordance with the laws of the jurisdiction
of that court;
- (B)
provides for -
- (i)
payment of child support (as defined in section
459(i)(2) of the Social Security Act (42 U.S.C. 659(i)(2)));
- (ii)
payment of alimony (as defined in section 459(i)(3) of
the Social Security Act (42 U.S.C. 659(i)(3))); or
- (iii)
division of property (including a division of
community property); and
- (C)
in the case of a division of property, specifically
provides for the payment of an amount, expressed in dollars or
as a percentage of disposable retired pay, from the disposable
retired pay of a member to the spouse or former spouse of that
member.
- (3)
The term ''final decree'' means a decree from which no
appeal may be taken or from which no appeal has been taken within
the time allowed for taking such appeals under the laws
applicable to such appeals, or a decree from which timely appeal
has been taken and such appeal has been finally decided under the
laws applicable to such appeals.
- (4)
The term ''disposable retired pay'' means the total monthly
retired pay to which a member is entitled less amounts which -
- (A)
are owed by that member to the United States for previous
overpayments of retired pay and for recoupments required by law
resulting from entitlement to retired pay;
- (B)
are deducted from the retired pay of such member as a
result of forfeitures of retired pay ordered by a court-martial
or as a result of a waiver of retired pay required by law in
order to receive compensation under title 5 or title 38;
- (C)
in the case of a member entitled to retired pay under
chapter 61 of this title, are equal to the amount of retired
pay of the member under that chapter computed using the
percentage of the member's disability on the date when the
member was retired (or the date on which the member's name was
placed on the temporary disability retired list); or
- (D)
are deducted because of an election under chapter 73 of
this title to provide an annuity to a spouse or former spouse
to whom payment of a portion of such member's retired pay is
being made pursuant to a court order under this section.
- (5)
The term ''member'' includes a former member entitled to
retired pay under section of this title.
- (6)
The term ''spouse or former spouse'' means the husband or
wife, or former husband or wife, respectively, of a member who,
on or before the date of a court order, was married to that
member.
- (7)
The term ''retired pay'' includes retainer pay.
- (b)
Effective Service of Process. - For the purposes of this
section -
- (1)
service of a court order is effective if -
- (A)
an appropriate agent of the Secretary concerned
designated for receipt of service of court orders under
regulations prescribed pursuant to subsection (i) or, if no
agent has been so designated, the Secretary concerned, is
personally served or is served by facsimile or electronic
transmission or by mail;
- (B)
the court order is regular on its face;
- (C)
the court order or other documents served with the court
order identify the member concerned and include, if possible,
the social security number of such member; and
- (D)
the court order or other documents served with the court
order certify that the rights of the member under the Soldiers'
and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. 501 et
seq.) were observed; and
- (2)
a court order is regular on its face if the order -
- (A)
is issued by a court of competent jurisdiction;
- (B)
is legal in form; and
- (C)
includes nothing on its face that provides reasonable
notice that it is issued without authority of law.
- (c)
Authority for Court To Treat Retired Pay as Property of the
Member and Spouse. - (1) Subject to the limitations of this
section, a court may treat disposable retired pay payable to a
member for pay periods beginning after June 25, 1981, 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. A court may not treat retired pay as property in any
proceeding to divide or partition any amount of retired pay of a
member as the property of the member and the member's spouse or
former spouse if a final decree of divorce, dissolution, annulment,
or legal separation (including a court ordered, ratified, or
approved property settlement incident to such decree) affecting the
member and the member's spouse or former spouse (A) was issued
before June 25, 1981, and (B) did not treat (or reserve
jurisdiction to treat) any amount of retired pay of the member as
property of the member and the member's spouse or former spouse.
- (2)
Notwithstanding any other provision of law, this section does
not create any right, title, or interest which can be sold,
assigned, transferred, or otherwise disposed of (including by
inheritance) by a spouse or former spouse. Payments by the
Secretary concerned under subsection (d) to a spouse or former
spouse with respect to a division of retired pay as the property of
a member and the member's spouse under this subsection may not be
treated as amounts received as retired pay for service in the
uniformed services.
- (3)
This section does not authorize any court to order a member
to apply for retirement or retire at a particular time in order to
effectuate any payment under this section.
- (4)
A court may not treat the disposable retired pay of a member
in the manner described in paragraph (1) 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.
- (d)
Payments by Secretary Concerned to (or for Benefit of) Spouse
or Former Spouse. - (1) After effective service on the Secretary
concerned of a court order providing for the payment of child
support or alimony or, with respect to a division of property,
specifically providing for the payment of an amount of the
disposable retired pay from a member to the spouse or a former
spouse of the member, the Secretary shall make payments (subject to
the limitations of this section) from the disposable retired pay of
the member to the spouse or former spouse (or for the benefit of
such spouse or former spouse to a State disbursement unit
established pursuant to section 454B of the Social Security Act or
other public payee designated by a State, in accordance with part D
of title IV of the Social Security Act, as directed by court order,
or as otherwise directed in accordance with such part D) in an
amount sufficient to satisfy the amount of child support and
alimony set forth in the court order and, with respect to a
division of property, in the amount of disposable retired pay
specifically provided for in the court order. In the case of a
spouse or former spouse who, pursuant to section 408(a)(3) of the
Social Security Act (42 U.S.C. 608(a)(4)), assigns to a State the
rights of the spouse or former spouse to receive support, the
Secretary concerned may make the child support payments referred to
in the preceding sentence to that State in amounts consistent with
that assignment of rights. In the case of a member entitled to
receive retired pay on the date of the effective service of the
court order, such payments shall begin not later than 90 days after
the date of effective service. In the case of a member not
entitled to receive retired pay on the date of the effective
service of the court order, such payments shall begin not later
than 90 days after the date on which the member first becomes
entitled to receive retired pay.
- (2)
If the spouse or former spouse to whom payments are to be
made under this section 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, payments may not be made under this section to the
extent that they include an amount resulting from the treatment by
the court under subsection (c) of disposable retired pay of the
member as property of the member or property of the member and his
spouse.
- (3)
Payments under this section shall not be made more frequently
than once each month, and the Secretary concerned shall not be
required to vary normal pay and disbursement cycles for retired pay
in order to comply with a court order.
- (4)
Payments from the disposable retired pay of a member pursuant
to this section shall terminate in accordance with the terms of the
applicable court order, but not later than the date of the death of
the member or the date of the death of the spouse or former spouse
to whom payments are being made, whichever occurs first.
- (5)
If a court order described in paragraph (1) provides for a
division of property (including a division of community property)
in addition to an amount of child support or alimony or the payment
of an amount of disposable retired pay as the result of the court's
treatment of such pay under subsection (c) as property of the
member and his spouse, the Secretary concerned shall pay (subject
to the limitations of this section) from the disposable retired pay
of the member to the spouse or former spouse of the member, any
part of the amount payable to the spouse or former spouse under the
division of property upon effective service of a final court order
of garnishment of such amount from such retired pay.
- (6)
In the case of a court order for which effective service is
made on the Secretary concerned on or after the date of the
enactment of this paragraph and which provides for payments from
the disposable retired pay of a member to satisfy the amount of
child support set forth in the order, the authority provided in
paragraph (1) to make payments from the disposable retired pay of a
member to satisfy the amount of child support set forth in a court
order shall apply to payment of any amount of child support
arrearages set forth in that order as well as to amounts of child
support that currently become due.
- (7)
- (A)
The Secretary concerned may not accept service of a court
order that is an out-of-State modification, or comply with the
provisions of such a court order, unless the court issuing that
order has jurisdiction in the manner specified in subsection (c)(4)
over both the member and the spouse or former spouse involved.
- (B)
A court order shall be considered to be an out-of-State
modification for purposes of this paragraph if the order -
- (i)
modifies a previous court order under this section upon
which payments under this subsection are based; and
- (ii)
is issued by a court of a State other than the State of
the court that issued the previous court order.
- (e)
Limitations. - (1) The total amount of the disposable retired
pay of a member payable under all court orders pursuant to
subsection (c) may not exceed 50 percent of such disposable retired
pay.
- (2)
In the event of effective service of more than one court
order which provide for payment to a spouse and one or more former
spouses or to more than one former spouse, the disposable retired
pay of the member shall be used to satisfy (subject to the
limitations of paragraph (1)) such court orders on a first-come,
first-served basis. Such court orders shall be satisfied (subject
to the limitations of paragraph (1)) out of that amount of
disposable retired pay which remains after the satisfaction of all
court orders which have been previously served.
- (3)
- (A)
In the event of effective service of conflicting court
orders under this section which assert to direct that different
amounts be paid during a month to the same spouse or former spouse
of the same member, the Secretary concerned shall -
- (i)
pay to that spouse from the member's disposable retired pay
the least amount directed to be paid during that month by any
such conflicting court order, but not more than the amount of
disposable retired pay which remains available for payment of
such court orders based on when such court orders were
effectively served and the limitations of paragraph (1) and
subparagraph (B) of paragraph (4);
- (ii)
retain an amount of disposable retired pay that is equal
to the lesser of -
- (I)
the difference between the largest amount required by any
conflicting court order to be paid to the spouse or former
spouse and the amount payable to the spouse or former spouse
under clause (i); and
- (II)
the amount of disposable retired pay which remains
available for payment of any conflicting court order based on
when such court order was effectively served and the
limitations of paragraph (1) and subparagraph (B) of paragraph
(4); and
- (iii)
pay to that member the amount which is equal to the
amount of that member's disposable retired pay (less any amount
paid during such month pursuant to legal process served under
section 459 of the Social Security Act (42 U.S.C. 659) and any
amount paid during such month pursuant to court orders
effectively served under this section, other than such
conflicting court orders) minus -
- (I)
the amount of disposable retired pay paid under clause
- (II)
the amount of disposable retired pay retained under
clause (ii).
- (B)
The Secretary concerned shall hold the amount retained under
clause (ii) of subparagraph (A) until such time as that Secretary
is provided with a court order which has been certified by the
member and the spouse or former spouse to be valid and applicable
to the retained amount. Upon being provided with such an order,
the Secretary shall pay the retained amount in accordance with the
order.
- (4)
- (A)
In the event of effective service of a court order under
this section and the service of legal process pursuant to section
459 of the Social Security Act (42 U.S.C. 659), both of which
provide for payments during a month from the same member,
satisfaction of such court orders and legal process from the
retired pay of the member shall be on a first-come, first-served
basis. Such court orders and legal process shall be satisfied out
of moneys which are subject to such orders and legal process and
which remain available in accordance with the limitations of
paragraph (1) and subparagraph (B) of this paragraph during such
month after the satisfaction of all court orders or legal process
which have been previously served.
- (B)
Notwithstanding any other provision of law, the total amount
of the disposable retired pay of a member payable by the Secretary
concerned under all court orders pursuant to this section and all
legal processes pursuant to section 459 of the Social Security Act
(42 U.S.C. 659) with respect to a member may not exceed 65 percent
of the amount of the retired pay payable to such member that is
considered under section 462 of the Social Security Act (42 U.S.C.
662) to be remuneration for employment that is payable by the
United States.
- (5)
A court order which itself or because of previously served
court orders provides for the payment of an amount which exceeds
the amount of disposable retired pay available for payment because
of the limit set forth in paragraph (1), or which, because of
previously served court orders or legal process previously served
under section 459 of the Social Security Act (42 U.S.C. 659),
provides for payment of an amount that exceeds the maximum amount
permitted under paragraph (1) or subparagraph (B) of paragraph (4),
shall not be considered to be irregular on its face solely for that
reason. However, such order shall be considered to be fully
satisfied for purposes of this section by the payment to the spouse
or former spouse of the maximum amount of disposable retired pay
permitted under paragraph (1) and subparagraph (B) of paragraph
(4).
- (6)
Nothing in this section shall be construed to relieve a
member of liability for the payment of alimony, child support, or
other payments required by a court order on the grounds that
payments made out of disposable retired pay under this section have
been made in the maximum amount permitted under paragraph (1) or
subparagraph (B) of paragraph (4). Any such unsatisfied obligation
of a member may be enforced by any means available under law other
than the means provided under this section in any case in which the
maximum amount permitted under paragraph (1) has been paid and
under section 459 of the Social Security Act (42 U.S.C. 659) in any
case in which the maximum amount permitted under subparagraph (B)
of paragraph (4) has been paid.
- (f)
Immunity of Officers and Employees of United States. - (1)
The United States and any officer or employee of the United States
shall not be liable with respect to any payment made from retired
pay to any member, spouse, or former spouse pursuant to a court
order that is regular on its face if such payment is made in
accordance with this section and the regulations prescribed
pursuant to subsection (i).
- (2)
An officer or employee of the United States who, under
regulations prescribed pursuant to subsection (i), has the duty to
respond to interrogatories shall not be subject under any law to
any disciplinary action or civil or criminal liability or penalty
for, or because of, any disclosure of information made by him in
carrying out any of his duties which directly or indirectly pertain
to answering such interrogatories.
- (g)
Notice to Member of Service of Court Order on Secretary
Concerned. - A person receiving effective service of a court order
under this section shall, as soon as possible, but not later than
30 days after the date on which effective service is made, send a
written notice of such court order (together with a copy of such
order) to the member affected by the court order at his last known
address.
- (h)
Benefits for Dependents Who Are Victims of Abuse by Members
Losing Right to Retired Pay. - (1) If, in the case of a member or
former member of the armed forces referred to in paragraph (2)(A),
a court order provides (in the manner applicable to a division of
property) for the payment of an amount from the disposable retired
pay of that member or former member (as certified under paragraph
(4)) to an eligible spouse or former spouse of that member or
former member, the Secretary concerned, beginning upon effective
service of such court order, shall pay that amount in accordance
with this subsection to such spouse or former spouse.
- (2)
A spouse or former spouse of a member or former member of the
armed forces is eligible to receive payment under this subsection
if -
- (A)
the member or former member, while a member of the armed
forces and after becoming eligible to be retired from the armed
forces on the basis of years of service, has eligibility to
receive retired pay terminated as a result of misconduct while a
member involving abuse of a spouse or dependent child (as defined
in regulations prescribed by the Secretary of Defense or, for the
Coast Guard when it is not operating as a service in the Navy, by
the Secretary of Transportation); and
- (B)
the spouse or former spouse -
- (i)
was the victim of the abuse and was married to the member
or former member at the time of that abuse; or
- (ii)
is a natural or adopted parent of a dependent child of
the member or former member who was the victim of the abuse.
- (3)
The amount certified by the Secretary concerned under
paragraph (4) with respect to a member or former member of the
armed forces referred to in paragraph (2)(A) shall be deemed to be
the disposable retired pay of that member or former member for the
purposes of this subsection.
- (4)
Upon the request of a court or an eligible spouse or former
spouse of a member or former member of the armed forces referred to
in paragraph (2)(A) in connection with a civil action for the
issuance of a court order in the case of that member or former
member, the Secretary concerned shall determine and certify the
amount of the monthly retired pay that the member or former member
would have been entitled to receive as of the date of the
certification -
- (A)
if the member or former member's eligibility for retired
pay had not been terminated as described in paragraph (2)(A); and
- (B)
if, in the case of a member or former member not in receipt
of retired pay immediately before that termination of eligibility
for retired pay, the member or former member had retired on the
effective date of that termination of eligibility.
- (5)
A court order under this subsection may provide that whenever
retired pay is increased under section 1401a of this title (or any
other provision of law), the amount payable under the court order
to the spouse or former spouse of a member or former member
described in paragraph (2)(A) shall be increased at the same time
by the percent by which the retired pay of the member or former
member would have been increased if the member or former member
were receiving retired pay.
- (6)
Notwithstanding any other provision of law, a member or
former member of the armed forces referred to in paragraph (2)(A)
shall have no ownership interest in, or claim against, any amount
payable under this section to a spouse or former spouse of the
member or former member.
- (7)
- (A)
If a former spouse receiving payments under this
subsection with respect to a member or former member referred to in
paragraph (2)(A) marries again after such payments begin, the
eligibility of the former spouse to receive further payments under
this subsection shall terminate on the date of such marriage.
- (B)
A person's eligibility to receive payments under this
subsection that is terminated under subparagraph (A) by reason of
remarriage shall be resumed in the event of the termination of that
marriage by the death of that person's spouse or by annulment or
divorce. The resumption of payments shall begin as of the first
day of the month in which that marriage is so terminated. The
monthly amount of the payments shall be the amount that would have
been paid if the continuity of the payments had not been
interrupted by the marriage.
- (8)
Payments in accordance with this subsection shall be made out
of funds in the Department of Defense Military Retirement Fund
established by section 1461 of this title or, in the case of the
Coast Guard, out of funds appropriated to the Department of
Transportation for payment of retired pay for the Coast Guard.
- (9)
- (A)
A spouse or former spouse of a member or former member of
the armed forces referred to in paragraph (2)(A), while receiving
payments in accordance with this subsection, shall be entitled to
receive medical and dental care, to use commissary and exchange
stores, and to receive any other benefit that a spouse or a former
spouse of a retired member of the armed forces is entitled to
receive on the basis of being a spouse or former spouse, as the
case may be, of a retired member of the armed forces in the same
manner as if the member or former member referred to in paragraph
(2)(A) was entitled to retired pay.
- (B)
A dependent child of a member or former member referred to in
paragraph (2)(A) who was a member of the household of the member or
former member at the time of the misconduct described in paragraph
(2)(A) shall be entitled to receive medical and dental care, to use
commissary and exchange stores, and to have other benefits provided
to dependents of retired members of the armed forces in the same
manner as if the member or former member referred to in paragraph
(2)(A) was entitled to retired pay.
- (C)
If a spouse or former spouse or a dependent child eligible or
entitled to receive a particular benefit under this paragraph is
eligible or entitled to receive that benefit under another
provision of law, the eligibility or entitlement of that spouse or
former spouse or dependent child to such benefit shall be
determined under such other provision of law instead of this
paragraph.
- (10)
- (A)
For purposes of this subsection, in the case of a member
of the armed forces who has been sentenced by a court-martial to
receive a punishment that will terminate the eligibility of that
member to receive retired pay if executed, the eligibility of that
member to receive retired pay may, as determined by the Secretary
concerned, be considered terminated effective upon the approval of
that sentence by the person acting under section 860(c) of this
title (article 60(c) of the Uniform Code of Military Justice).
- (B)
If each form of the punishment that would result in the
termination of eligibility to receive retired pay is later
remitted, set aside, or mitigated to a punishment that does not
result in the termination of that eligibility, a payment of
benefits to the eligible recipient under this subsection that is
based on the punishment so vacated, set aside, or mitigated shall
cease. The cessation of payments shall be effective as of the
first day of the first month following the month in which the
Secretary concerned notifies the recipient of such benefits in
writing that payment of the benefits will cease. The recipient may
not be required to repay the benefits received before that
effective date (except to the extent necessary to recoup any amount
that was erroneous when paid).
- (11)
In this subsection, the term ''dependent child'', with
respect to a member or former member of the armed forces referred
to in paragraph (2)(A), means an unmarried legitimate child,
including an adopted child or a stepchild of the member or former
member, who -
- (A)
is under 18 years of age;
- (B)
is incapable of self-support because of a mental or
physical incapacity that existed before becoming 18 years of age
and is dependent on the member or former member for over one-half
of the child's support; or
- (C)
if enrolled in a full-time course of study in an
institution of higher education recognized by the Secretary of
Defense for the purposes of this subparagraph, is under 23 years
of age and is dependent on the member or former member for over
one-half of the child's support.
- (i)
Certification Date. - It is not necessary that the date of a
certification of the authenticity or completeness of a copy of a
court order for child support received by the Secretary concerned
for the purposes of this section be recent in relation to the date
of receipt by the Secretary.
- (j)
Regulations. - The Secretaries concerned shall prescribe
uniform regulations for the administration of this section.
- (k)
Relationship to Other Laws. - In any case involving an order
providing for payment of child support (as defined in section
459(i)(2) of the Social Security Act) by a member who has never
been married to the other parent of the child, the provisions of
this section shall not apply, and the case shall be subject to the
provisions of section 459 of such Act.
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