The Uniformed Services Former Spouses' Protection Act

The Uniformed Services Former Spouses’ Protection Act (USFSPA) was enacted in 1982, and was designed to ensure that spouses divorcing military members who are part of the Army, Navy, Air Force, and Marines, are treated fairly when it comes to spousal support, payment of child support and the division of marital assets.

Questions about how the family law court will handle a divorce process may depend on your state of residency. State divorce laws govern legal separation, child custody, child support, property division, and alimony. Consult with military divorce lawyers in a city near you to get the best legal advice about your situation.

What Is the USFSPA?

According to the U.S. Code (Title 10, Section 1408), disposable retired pay may be subject to court-ordered payments for the aforementioned reasons (subsection d5). Authority is generally granted by the USFSPA under subsection (c1), which reads:

“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.”

The act does not cover divorces that were finalized prior to its enactment.

What Is the “10/10” Rule?

The U.S. code reiterates the importance of the 10/10 rule as described in Title 10, Section 1408, subsection (d2). This is based on the years of creditable service in the armed forces.

“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.”

Subsection (c) describes the “authority for court to treat retired pay as property of the member and spouse,” meaning that unless the divorcee does qualify under this rule, automatic action to seek marital division of property targeting retirement pay is not enforceable. This does not mean that court-ordered spousal support (alimony) or child support payment cannot be pressed concerning any retirement pay, simply that the retirement pay of the military member in question is not subject to the usual division of property.

Does the USFSPA Enforce Child Support and Alimony?

According to subsection (d1), child support and alimony— as court-ordered — can be subject to payments from the secretary concerned (whether the secretary of defense, coast guard, or homeland security).

The USFSPA does, however, limit these payments to no more than 50% of a military member’s retirement pay. This limitation is stated in subsection e1:

“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.”

Does USFSPA State When a Child Support Obligation Ends?

It is frequently assumed that there is an automatic termination of an obligation to pay child support when the dependent children reach the age of 18. Child support obligations end per the terms of the court order regarding the continuing payments of said order. Typically, when the court order does not specify when enforcement of child support payments end, these payments end when the child reaches the age of majority (becomes an adult) in the state that issued the court order.

The language in the divorce decree or state divorce law determines when the child support ends. Your family law attorney should tell you when the obligation terminates so that you can plan your financial affairs.

The Act basically specifies the limits placed on state courts and outlines how an application for direct payments will be processed.

How Does USFSPA Handle Military Retired Pay?

The USFSPA allows military spouses involved in a divorce case to treat military retired pay as divisible property. However, VA disability pay is not treated the same. That being said, VA disability payment may be subject to spousal support orders (alimony) or child support orders if there is a direct court order as a separate matter.

The USFSPA, in and of itself, does not dictate the nature of any such division of assets concerning military retired pay. State courts — and court orders from the same states regarding divorce proceedings — determine how marital property is divided.

Can an Ex Spouse Lose Military Retirement?

If a former spouse of a military member eligible for a pension qualifies for a share of the military member’s retirement pay via court order, they may retain access to regular payments even if they remarry. If the military member who is the primary recipient of the retirement pay passes away, however, those payments are generally terminated. If a former spouse of a military member remarries, it is usually the case that any military ID privileges, and health care coverage under TRICARE, are also terminated.

However, certain types of military pension payments (Legacy High-3 or High-36 pension as well as Survivor’s Pension) do terminate when the former military spouse remarries.

Are There Limits on Forum Shopping by the Spouse?

Yes, the FSPA has special jurisdictional requirements that must be met before a court has the power to treat retired pay as property. This requirement is not present when the application is made for an award of child support or spousal maintenance. The Act states in section 1408(c)(4):

“A court may not treat the disposable retired or retainer pay of a member in the manner described (above) 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.”

This provision is one of the protections for the member in the Act, but few attorneys seem to consider this provision in planning the strategy for the case. It is much more restrictive than the usual state rules as to when a court has jurisdiction over a party to litigation, and it is vital that the attorney representing either party fully considers the implications of this rule.

How Do State Courts Determine How To Divide the Retirement?

In community property states and many of the other states, a cut and dried formula is used when the member is a veteran or has already retired. But for an active duty member, there may be no state divorce law that specifies how to calculate the award.

Depending on who was to receive the larger award, there are at least 12 arguably fair methods of calculating the former spouse`s share. All would be acceptable under the USFSPA.

USFSPA FAQs

These are some common questions about the USFSPA and military benefits after a divorce. If you need help with your specific questions, contact an experienced family law attorney who understands military divorce situations.

Does the FSPA state who is responsible for the payment of income tax on the share non-military spouses receive?

Indirectly, under certain circumstances it does. A part of any settlement should be a clear understanding of what rules apply in a particular case because unintended results can take place without proper planning, and a lack of understanding of the law.

Does the law require state courts to divide military retired pay?

No, it only permits state courts to treat it as property. At this time, all states, in one way or another, treat military retired pay as marital property in certain circumstances.

What is the definition of disposable retired pay?

It varies depending on when the marriage was dissolved. The current definition of disposable retirement pay is found in the Act at (a)(4).

What is an ex-spouse protection deduction?

Alimony payments made by a military service member to a former spouse are tax-deductible, and the recipient (the former military spouse) usually must declare these payments as a form of income when filing taxes.