The Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. 1408, accomplishes two things:
- It recognizes the right of state courts to distribute military retired pay to a spouse or former spouse (hereafter, the former spouse), and
- It provides a method of enforcing these orders through the Department of Defense.
The USFSPA does not automatically entitle a former spouse to a portion of the member's retired pay. A former spouse must have been awarded a portion of a member's military retired pay as property in their final court order. It also provides a method of enforcing current and/or previously owed (arrears) child support and current alimony awarded in the court order. For more information please see the regulation and chapter 29 in the DoD Financial Management Regulation.
Court orders enforceable under the USFSPA include final decrees of divorce, dissolution, annulment, and legal separation, and court-ordered property settlements incident to such decrees. The pertinent court order must provide for the payment of child support, alimony, or retired pay as property, to a former spouse.
Court orders awarding a portion of military retired pay as property that were issued prior to June 26, 1981, can be honored if the requirements of the USFSPA are met. However, amendments issued after June 25, 1981, to court orders issued prior to June 26, 1981, which were silent as to providing for a division of retired pay as property, cannot be enforced under USFSPA. Also, for court orders issued prior to November 14, 1986, if any portion of a member's military retired pay is based on disability retired pay, the orders are unenforceable under the USFSPA.
Section 1408(h) of the USFSPA provides benefits to a former spouse of a member who, as a result of the abuse of a spouse or dependent child, loses the right to retired pay after becoming retirement-eligible due to years of service. A former spouse may enforce an order dividing retired pay as property under this Section if the special requirements of Section 1408(h) are satisfied in addition to all the regular requirements of the USFSPA. The right to payments under this Section terminates upon the remarriage of the former spouse, or upon the death of either party. Section 1408(h) also provides for the enforcement of a court order awarding child support to a member’s dependent child, where the dependent child’s other parent died as a result of the member’s misconduct.
The Military Member's Rights
In all cases where the member was on active duty at the time of the divorce, the member's rights under the Servicemember’s Civil Relief Act (SCRA), or, for divorces prior to December 19, 2003, the Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA), must have been observed during the state court proceeding.
Dividing Retired Pay as a Marital Asset or Community Property
Retired pay as property awards must be expressed as:
- a fixed dollar amount, or
- a percentage of disposable retired pay (gross retired pay less allowable deductions).
If the parties are divorced while the member is still on active duty, the former spouse’s award may be expressed by an acceptable formula or hypothetical retired pay award. An award of a percentage of a member's retired pay is automatically construed under the USFSPA as a percentage of disposable retired pay. A Qualified Domestic Relations Order is not required to divide retired pay as long as the former spouse's award is set forth in the pertinent court order.
The National Defense Authorization Act (NDAA) of 2017, in Section 641, signed by the President on December 23, 2016, amended the definition of disposable pay in the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408. For Divorces entered after December 23, 2016, (in a case where the order becomes final prior to the member’s retirement) the military member’s disposable income is limited to “the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order” and increased by the cost-of-living amounts granted to military retirees from the time of the (divorce) to the date the member retires.
Please reference "NDAA-'17 Court Order Requirements" for details.
The 10/10 Rule
In addition, for orders dividing retired pay as property to be enforced under the USFSPA, a member and former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service creditable towards retirement eligibility (the 10/10 rule).
Also, to enforce orders dividing retired pay as property, the state court must have had jurisdiction over the member by reason of
1) the member's residence in the territorial jurisdiction of the court (other than because of military assignment),
2) the member's domicile in the territorial jurisdiction of the court, or
3) the member's consent to the jurisdiction of the court.
4) the member indicates his or her consent to the court’s jurisdiction by taking some affirmative action in the legal proceeding.
The 10/10 rule and the jurisdictional requirement do not apply to enforcement of child support or alimony awards under the USFSPA.