Background
This information is neither a legal brief nor a position. It cannot be used as evidence of intent, interpretation, or precedent in any legal action. This information 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.
Summary
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 divide it as marital property. The USFSPA does not allow the law to confer an entitlement to a portion of retired based solely on length of marriage.
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 divorces finalized on or after November 14, 1986, PL 99-661 permits state courts to order SBP coverage.
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.
If a member remains on active duty following divorce, the former spouse should send a copy of the divorce decree and property settlement agreement (if any) along with a completed DD Form 2293 to DFAS Garnishment Law Directorate, P.O. Box 998002, Cleveland, OH 44199-8002. If SBP is awarded, DFAS-CL must be notified within one year of the final decree or property settlement date. The former spouse should submit a completed DD Form 2656-10 a copy of the divorce decree and property settlement agreement (if any) to DFAS Garnishment Law Directorate, P.O. Box 998002, Cleveland, OH 44199-8002. 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.
Direct Payment of Retired Pay to a Former Spouse
As stated above, if a court awards a portion of retired pay as property, the former spouse may apply to DFAS-CL 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.
For divorces entered after December 23, 2016, the National Defense Authorization Act (NDAA) of 2017 amended the definition of disposable pay. In the case of a division of military retired pay as property where the Servicemember is on Active Duty of the date of divorce, disposable retired is limited to “the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation” and increased by the cost-of-living amounts granted to military retirees from the time of the divorce, dissolution, annulment, or legal separation, and the date of the Servicemember’s retirement. Court order requirements can be found here https://www.dfas.mil/garnishment/usfspa/NDAA-17-Court-Order-Requirements/
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.
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.
Impact on the Survivor Benefit Plan
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. As stated above, 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 using a DD Form 2656-10 and supporting documentation. If neither the Retired Soldier 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 cannot 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.
If divorce occurs after the Servicemember’s retirement, SBP coverage for a former spouse will be no more than the amount of SBP coverage previously elected for the spouse.
A former spouse who remarries before age 55 loses SBP eligibility; however, if the re-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 spouse's 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 and Other Benefits
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 for continuation of TRICARE, PX and Commissary privileges 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.
The former spouse has 90 days from the date of divorce to apply with DEERS for 20-20-20 status.
