General Information Facts: This is not a legal brief nor a position. It cannot be used as evidence of intent, interpretation, or precedent in any legal action. This paper is not a legal or judicial interpretation of enacted laws and does not deal with case law. Because of the complexity of the USFSPA, state divorce laws, and personal situations involved, individuals involved in a divorce process are encouraged to obtain legal counsel.
Prior to the 1981 state courts disagreed on whether they were authorized or constrained by federal law in dividing military retired pay in divorce-related property settlements. On 26 June 1981, the U.S. Supreme Court ruled (McCarty vs. McCarty) that military retired pay could not be treated as community property in divorce cases.
The USFSPA (Section 1408, Title 10 USC) established by PL 97-252 (8 September 1982) and amended by PL 98-94 (24 September, 1983); PL 98-525 (27 September 1984); PL 99-145 (8 November 1985); PL 99-661 (14 November 1986); PL 100-180 (4 December 1987); and PL 101-510 (5 November 1990) decrees that state divorce courts, if they chose, may treat military retired pay as community property. The USFSPA does not create a Federal right to any portion of the military retired pay on behalf of the former spouse, but rather recognizes that the states may treat it as such. The USFSPA does not allow the law to confer an entitlement to a portion of retired based solely on length of marriage.
If a court awards a portion of retired pay as property, the former spouse may apply to the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL), Operations Directorate, PO Box 998002, Cleveland, OH 44199-8002 to receive it as a "direct payment". To qualify for direct payment, the USFSPA requires that a former spouse must have been married to the member during at least 10 years of the member's service creditable for retired pay.
Under the USFSPA no more than 50 percent of a member's disposable retired pay will be sent as a direct payment. However, if there are garnishments for alimony or child support, up to 65 percent may be sent as a direct payment.
Depending upon date of court order, disposable pay is generally defined as retired pay to which a member is entitled less amounts:
owed to the United States for previous overpayments of retired pay and for recoupment required by law resulting from entitlement to retired pay.
deducted from the retired pay 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.
of the member's retired pay under Chapter 61, Title 10, USC, as computed using the percentage of the member's disability on the date when the member was temporarily or permanently retired, if the court order is dated on or after November 14, 1986.
deducted because of an SBP election.
PL 101-510 stipulates that a court may not treat retired pay as property if the final decree of divorce, dissolution, annulment, or legal separation (including a court-ordered, ratified, or approved property settlement incident to such decree) was (1) issued before 25 June 25 1981, and (2) did not treat (or reserve jurisdiction to treat) any amount of retired pay as property. Judgments issued before 5 November 1990, to amend pre-26 June 1981 divorce settlements, to provide for a division of retired pay as property, may be annulled or modified by PL 101-510 on or after 5 November 1992.
When more than one former spouse has been awarded a division of a member's retired pay, payment will be handled on a first-come, first-served basis. When conflicting court orders exist, DFAS-CL will send the amount specified in the lower of the two conflicting orders (not to exceed 50% of disposable pay), and retain the difference until the matter is resolved.
The USFSPA does not allow a state court to order a member to apply for or to specify a date of retirement.
Unless court ordered, remarriage of a former spouse will not stop the direct payment of retired pay as property.
For court orders finalized on or after February 3, 1991, payment of retired pay as property is taxable. DFAS-CL will send an IRS Form 1099R to the former spouse.
If a member remains on active duty following divorce, the former spouse should send a copy of the divorce decree or property settlement to DFAS-CL. If SBP is awarded, DFAS-CL must be notified within one year of the final decree or property settlement date. If the court order meets the criteria of the law, it will be retained until the member retires. The former spouse must inform DFAS-CL of changes in address or marital status.
Prior to PL 99-661 members could voluntarily elect SBP coverage for a former spouse under the Insurable Interest category.
For divorces finalized on or after November 14, 1986, PL 99-661 permits state courts to order SBP coverage.
If a member voluntarily elects SBP coverage for a former spouse and that agreement has been ratified or approved by a court order, or, if the member has been ordered to elect SBP coverage for a former spouse, the retired member must make that election within one year of the date of the divorce. A former spouse, within one year of the date of divorce may submit to DFAS-CL a request that a "deemed" SBP election be established. If neither the retiree nor the former spouse requests former spouse SBP coverage within one year of date of divorce, former spouse coverage will not be established.
A retired member can not voluntarily elect nor can a court order former spouse SBP coverage if the retired member had not elected SBP spouse coverage at time of retirement.
SBP coverage for a former spouse will be no more than the amount of SBP coverage for the spouse.
A former spouse who remarries before age 55 loses SBP eligibility; however, if the marriage ends in death, divorce, or annulment, eligibility is reinstated. A former spouse who remarries after age 55 does not lose eligibility.
Former spouse SBP coverage is generally irrevocable. However, if a retired member remarries a change from former spouse to spouse coverage, may be made with the former spouses written consent. Such a request for change must be submitted to DFAS-CL within one year of the date of remarriage. If the former spouse SBP coverage was ratified or approved by a court order, the court order must be amended within one year.
Military ID cards cannot be ordered or decreed by a divorce court. Questions concerning eligibility should be directed to the nearest military ID card issuing facility. Generally former spouses are eligible if:
The marriage lasted 20 years or more, and
The member served 20 years or more of service creditable for retired pay, and
The marriage and the creditable service overlap 20 or more years. (In some cases, restricted benefits are authorized if the overlap is less than 20 but greater than 15)
For additional information on the USFSPA, contact the nearest military legal assistance office.
Source for entry: http://www.armyg1.army.mil/Rso/abt.asp
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