A Guide to the Uniformed Services Former Spouses’ Protection Act (USFSPA)

A Guide to the Uniformed Services Former Spouses’ Protection Act (USFSPA)

Navigating the complexities of military divorce can be overwhelming, particularly when it comes to dividing military retirement benefits. The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal law that allows state courts to treat military retirement pay as marital property and divide it in divorce proceedings. However, it’s crucial to understand how this law works, how it impacts your case, and the unique provisions it carries. Misunderstanding these rules can lead to costly errors, affecting your financial future.

In this blog, we’ll explore the key aspects of the USFSPA, including how disposable retirement pay is defined, the importance of jurisdiction, the 10/10 rule, and additional provisions for garnishment of retirement pay for child or spousal support, as well as protections for victims of abuse.

1. What is the USFSPA?

The USFSPA grants state courts the authority to treat military retirement benefits as marital property and divide them in a divorce. This means a former spouse may receive a share of the service member’s retirement pay. However, it’s important to note that the USFSPA does not provide an automatic entitlement to retirement benefits; instead, it allows state courts to include military pensions in their division of assets. Each state’s family law governs how the pension is divided, which can lead to different outcomes depending on where the divorce is filed.

2. Understanding Disposable Retirement Pay

A critical element in dividing military pensions is understanding the concept of “disposable retirement pay.” Under the USFSPA, only disposable retired pay can be divided in a divorce. This is defined as the gross retired pay minus:

• Amounts waived to receive VA disability compensation
• Deductions for Survivor Benefit Plan (SBP) premiums
• Forfeitures due to misconduct or violations of the Uniform Code of Military Justice (UCMJ)
• Recoupment of overpayments

Many people mistakenly believe that a service member’s full retirement pay is available for division, but VA disability compensation and other waivers reduce the total amount a former spouse can receive. This is an important distinction that both parties must consider when negotiating a settlement.

3. Jurisdiction Matters

The USFSPA includes specific rules about which state courts can issue orders to divide military pensions. In general, a state court must have jurisdiction over the service member, which means:

• The service member is a resident of the state where the court is located (but not if the residency is due solely to military assignment)
• The service member consents to the jurisdiction
• The service member is domiciled in that state for reasons other than military assignment

Jurisdiction plays a critical role because not every state may have the legal standing to divide military retirement pay. Ensuring that the court handling your divorce has the proper jurisdiction is a vital step in securing your rights to military benefits.

4. The 10/10 Rule and Direct Payments from DFAS

The 10/10 rule is one of the most important aspects of the USFSPA for former spouses seeking direct payments from DFAS (Defense Finance and Accounting Service). To qualify for direct payments from DFAS, the couple must have been married for at least 10 years, with at least 10 years of overlapping military service. If these criteria are met, DFAS can send the former spouse’s share of the military retirement directly to them, ensuring reliable and timely payments.

However, if the marriage does not meet the 10/10 rule, the former spouse may still be entitled to a portion of the retirement pay, but they would need to collect it directly from the service member, rather than through DFAS.

5. Garnishment of Military Retired Pay for Support Obligations

Another important provision of the USFSPA allows for the garnishment of military retirement pay for child support or spousal support obligations. This means that a former spouse can receive a portion of the retirement pay to satisfy court-ordered support obligations. The garnishment of retirement pay for support is often critical for ensuring financial stability, particularly when the service member is not voluntarily complying with support orders.

The garnishment process through DFAS is generally straightforward, provided the proper documentation is submitted. This ensures that child or spousal support is paid consistently, directly from the service member’s retirement pay.

6. Protections for Victims of Abuse: Payment of Lost Retirement Pay

The USFSPA also includes a unique provision that allows for the payment of lost retirement pay to former spouses who are victims of abuse. Under this provision, victims of abuse by the service member can be awarded a share of military retired pay that was lost due to a bad conduct or dishonorable discharge if the conviction was due to abuse against a former spouse or child of the service member. This provides financial protection for victims who may otherwise be left without adequate resources following a divorce.

Conclusion: Why Working with a Knowledgeable Attorney is Essential

Navigating the USFSPA is complex and requires a deep understanding of both federal and state laws. Missteps in interpreting disposable retirement pay, jurisdictional rules, or key timelines like the 10/10 rule can have long-lasting financial consequences. Additionally, the USFSPA’s provisions for garnishing retirement pay for support or compensating victims of abuse require careful attention to ensure your rights are fully protected.

At Patriots Law Group, our team of former JAG attorneys is uniquely qualified to handle military divorces. We have the expertise to ensure that your share of military retirement pay is properly secured and that your financial interests are fully protected.

If you’re navigating a military divorce and need help understanding how the USFSPA impacts your case, contact us today to schedule a consultation at 301-952-9000 or use our online scheduling link (CLICK HERE).

Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Reading this blog does not create an attorney-client relationship. For specific legal advice, please contact directly.