What You Need to Know
The U.S. Supreme Court decision, McCarty v. McCarty, June 26, 1981, held that existing federal law precluded the award of military retirement benefits as marital property upon divorce. In the same decision, the Court “invited” congressional action. Congress responded with the Uniformed Services Former Spouses' Protection Act (USFSPA or FSPA), public law 97-252 (Title 10 U.S. Code, Sec. 1408 etc. seq.). Effective February 1, 1983, FSPA overtook the McCarty decision and returned to state courts the right to consider military retired pay as property upon divorce. FSPA provides a method of enforcing current child support and alimony awarded in a court order and permits a direct payment of retired pay (if awarded by the state court) for certain eligible former spouses. FSPA also allows some former spouses in certain cases to retain commissary and exchange privileges, military health care, and designation as a Survivor Benefit Plan (SBP) beneficiary.
Uniformed Services includes all seven branches, active and reserve components, of the Army, Navy, Marine Corps, Air Force, Coast Guard, and the Commissioned Corps of the the US Public Health Service and the National Oceanic and Atmospheric Administration (NOAA).
FSPA does not automatically grant a former spouse any of the service member’s retired pay. Whether military retired pay will be treated as marital property and how the service member’s military retired pay will be divided between the parties is decided according to state law. State courts have supremacy in family law cases. The formula for dividing reserve retired pay is based upon the same principle as active duty retirements, with one change – it utilizes retirement points, rather than months. A division can range from nothing to a maximum of 50% of disposable retired pay at the discretion of the court. Disposable retired pay is generally defined as the retired or retainer pay minus:
- obligations of the member to the United States, including court-martial ordered fines or overpayment of retirement pay;
- amounts deducted to pay for a court ordered Survivor Benefit Plan for the former spouse;
- and amounts received as veteran’s or military disability pay.
Retired pay awarded as property is not affected by remarriage.
FSPA allows direct payment of retired pay from the service finance center of the member, upon presentation of a valid court order, for alimony, child support, or property division.
The following apply:
- Direct payment of retired pay as property is authorized only if the marriage lasted at least 10 years during 10 years of the member’s creditable service. The 10 year requirement cannot be waived by either the service member or the former spouse. (If the marriage lasted less than 10 years, the former spouse can still receive retired pay as property but needs to receive this as a direct payment from the service member.)
- Direct payments cannot exceed 50% of disposable retired pay divided as property; an additional 15% can be paid on a garnishment order (such as child support or alimony).
- A valid court order must certify that the service member’s rights were observed under the Servicemembers’ Civil Relief Act (SCRA) formerly known as the Soldiers’ and Sailors’ Civil Relief Act of 1940.
Survivor Benefit Plan (SBP)
Military pension stops when the service member dies. SBP is a survivor annuity that pays a specified beneficiary 55% of the selected base amount (up to age 62) when the service member dies.
State courts have the option to order the service member to participate in SBP with the former spouse designated as the beneficiary. When the former spouse is designated as the SBP beneficiary and the agreement is incorporated in or ratified by a court order, the service member may NOT change beneficiaries without written concurrence from the former spouse.
The Reserve Component Survivor Benefit Plan is similar to the active duty SBP. Choices include: making an election upon the reservist’s retirement; deferring election until age 60, when the retirement benefits start; opting for a deferred SBP annuity; or starting SBP annuity immediately.
A former spouse who remarries before age 55 loses SBP eligibility; however, if remarriage is terminated then eligibility is reinstated. Remarriage after age 55 does not terminate SBP eligibility.
To assure coverage under SBP, the former spouse should submit a written request and a court-certified copy of the court order to the Defense Finance Accounting Service (DFAS). Court orders may be faxed or sent by email. (Our Association recommends such a transmission be followed up with “return receipt requested” mail.) The request and copy of the court order must be filed with DFAS within one year of the date of the court order.
In most cases, the non-military spouse will lose his/her ID card (and privileges) once the divorce is final, unless the spouse is a 20/20/20 or 20/20/15 spouse. If you are a 20/20/20 or 20/20/15 spouse, be prepared to bring specific documents with you to the ID section at your nearest installation to get your new ID card. Bring certified copies of your divorce decree, marriage certificate, and the service member’s DD214, if retired. You will also need the service member’s social security number. The former spouse will be issued a new ID card with a different identification number from the service member. It is always a smart idea to contact the ID section before you go, to verify what documents you will need.
Until military families are relieved of the weight of war, we hope you will continue to contribute to their wellbeing.
Sign up to receive periodic eNews and alerts.
Want up-to-date information and a community of people that care about military families?