USFSPA is a law passed by Congress in 1982 to offer some financial protection to certain former spouses of servicemembers. It allows states to divide military disposable retired pay as marital property upon divorce. It allows some former spouses (through a court order) to be awarded a share of disposable retired pay by direct payment from DFAS (Defense Finance and Accounting Service) and to obtain medical care and certain other benefits.
Disposable retired pay is the total monthly pay to which a retired servicemember is entitled, less most VA disability pay, federal debt repayments, fines, forfeitures, and Survivor Benefit Plan premiums.
Yes. In order to receive direct payment from DFAS for alimony and child support under the Act, you will first need to get a court order requiring the payment of child support or alimony. The court order does not have to state specifically that the award is made as direct payment of retired pay. The court order and/or other documents served with the court order must identify the soldier concerned and, if possible, state his or her Social Security Number. The USFSPA provides that not more than 65% of a retired military member’s retired pay can be garnished for spousal and child support.
You must meet the "10-year test" to receive direct payment under the Act. You, the former spouse, must have been married to the servicemember for at least of 10 years, during which the member performed at least 10 years of creditable service for retirement purposes. Further, if you meet the test, you must get a court order specifically stating that the award shall be made as direct payment of retired pay. If these conditions are met, then you can get monthly checks from DFAS.
Yes. Only Puerto Rico bars the division of pension rights upon divorce. All states have one method or another of granting the division of military pensions as marital property. You should check the laws of the state where you’re a legal resident, as well as the "home state" (or domicile) of the servicemember. You should also consult a military legal assistance attorney as to pension division in specific states. An overseas court, however, cannot grant military pension division; DFAS will only honor orders regarding division of retired pay from U.S. courts, not those of foreign countries.
The rules for retired pay division vary from state to state. For example, the court can divide the pension by ordering that a portion be paid to the nonmilitary spouse upon the servicemember's retirement. This would be paid on a monthly basis as long as the retiree receives payments. The payments could come from the retiree or, if the "direct payment" conditions in #4 above are met, directly from DFAS so long as it is contained in a court order (not just in a separation agreement).
Some states, such as California, allow payments to be made under court order while the member is still on active duty. Most states, however, do not. In all states, however, the law allows the present value of the pension to be used as a set-off or trade against other property that the nonmilitary spouse will receive. Thus the retired pay might be traded against the marital residence if the values of each were roughly equal. If the values were not equal and the servicemember received "too much" of the marital property, the judge could order him or her to transfer other property to the nonmilitary spouse, or to make regular payments to the other party (called a "distributive award") until the shares of the parties were adjusted as the judge ordered.
The court can only divide the "marital portion" of the pension, that is, the portion that was earned during the marriage. The rest of the pension (that earned before marriage or after separation or divorce) is his separate property. In addition to this, the Act says that no more than half of the pension can, under most circumstances, be divided. Many states presume an equal division of all marital property, including retirement rights. Other than this, there is no way of telling how much marital property will be awarded or how much of the pension will be granted to you.
Yes. Federal law states that, in the event the servicemember dies, the person receiving the award shall receive no further benefits unless the Survivor Benefit Plan (SBP) has been elected by the member. Payments will continue if SBP coverage has been chosen (but not necessarily in the amount of payments under USFSPA). The court can order a spouse to provide SBP coverage for the non-service spouse. The order, to be effective, must be served on DFAS within one year after the divorce; otherwise it will not be honored.
Yes. USFSPA limits pension division awards to 50 percent of the disposable retired pay, regardless of whether the pay is awarded as child support, alimony, or marital property to be directly paid from the finance center. There are certain exceptions in the event of multiple court orders involving other spouses. Ask your legal assistance attorney about these exceptions.
If you are a former spouse and meet certain requirements, you may be able to receive full or partial medical, dental, commissary, and post exchange benefits.
You can receive full benefits (including medical care on a "space-available" basis and CHAMPUS/TRICARE coverage) if you meet the "20/20/20 test". This three-part test requires that you must have been married to the soldier for at least 20 years. The soldier must have performed at least 20 years of creditable service toward retirement. Finally, at least 20 years of the marriage must overlap at least 20 years of active service. You must meet all three parts of the test.
Yes. A former spouse may be able to receive permanent medical benefits if the divorce decree was final before 1 April 1985 and you meet the "20/20/15 test".
Under either test, if a former spouse receives full benefits they cannot be covered by any type of employer-sponsored medical coverage. However, they can refuse your employer-sponsored medical benefits and retain the military medical benefits. They are also disqualified if you have individually-obtained medical insurance.
Yes. You they entitled to one year of transitional benefits, after which they have the right to convert to a private health plan set up by the Defense Department. However, they must remain unmarried and not be covered under employer-sponsored medical coverage.
If the nonmilitary spouse for some reason loses eligibility to medical care, he or she may purchase a "conversion health policy" under the DOD Continued Health Care Benefit Program (CHCBP), a health insurance plan negotiated between the Secretary of Defense and a private insurer. This must ordinarily be purchased within the 60-day period beginning on the later of the date that the former spouse ceases to meet the requirements for being considered a dependent. Upon purchase of this policy, the former spouse is entitled, upon request, to medical care until the date that is 36 months after (1) the date on which the final decree of divorce, dissolution or annulment occurs, or (2) the date the one-year extension of dependency under 10 U.S.C. 1072(2)(H) (for 20/20/15 spouses with divorce decrees on or after April 1, 1985) expires, whichever is later. Premiums must be paid three months in advance; rates are set for two rate groups, individual and group, by the Assistant Secretary of Defense (Health Affairs). CHCBP is not part of TRICARE. For further information on this program, contact a military medical treatment facility health benefits advisor, or contact the CHCBP Administrator, P.O. Box 1608, Rockville, MD 20849-1608 (1-800-809-6119).
A former spouse who qualifies for any of these benefits may apply for an ID card at any military ID card facility. He or she will be required to complete DD Form 1172, "Application for Uniformed Services Identification and Privilege Card." The former spouse should be sure to take along a current and valid picture ID card (such as a driver’s license), a copy of the marriage certificate, the court decree, a statement of the member's service (if available) and a statement that he or she has not remarried and is not participating in an employer-sponsored health care plan.
The benefits we’re discussing are statutory entitlements; they belong to the nonmilitary spouse if she or he meets the requirements as set out above. They are not terms that may be given or withheld by the military member, and thus they should not ordinarily be part of the "give and take" of pension and property negotiations since the military member has no control over these spousal benefits.
Very good question. There are lots of military cases where rights and advantages have been lost because the attorney lacked knowledge of the subject matter. As a practical matter, there are very few attorneys in any given state (and even fewer overseas) who know much about this little-known corner of the law -- USFSPA and the division of military retirement benefits. And since you only get one chance to do it right, it makes sense to find the right lawyer right off the bat! Fill out the
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