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Divorced Spouses of Military Service Members

Military married couples who decide to divorce are affected by the Uniformed Services Former Spouse Protection Act (USFSPA), which was enacted in September of 1982. This law does not automatically give former spouses a portion of the member's retired pay. Rather, the law permits individual states to treat military disposable retired pay as marital property, subject to division, in divorce actions. The USFSPA defines "disposable retired pay" as gross retired pay minus:

  1. Amounts owed to the government for previous overpayments;
  2. Forfeitures adjudged by a court-martial;
  3. Pay waived to receive VA disability payments; and 
  4. Survivor's Benefit Plan premiums.

A former spouse is not allowed to receive any portion of a service member's disability pay. The maximum amount of retired pay income a former spouse can receive is 50% of the disposable retirement pay. Additionally, if the couples meet several requirements, the former spouse may be eligible to continue receiving and using several military benefits.

20/20/20 Rule

If the service member has served for a minimum of 20 credible years, the couple were married for a minimum of 20 years, and the marriage overlapped the period of service by at least 20 years, the former spouse is permitted to continue receiving and using full health care, as long as s/he does not remarry or have an employer-sponsored health plan, commissary and post/base exchange privileges.

20/20/15 Rule

If the marriage lasted 20 years and the service member served 20 credible years in the military but only 15 years overlap between the two, the former spouse is eligible for one year of health benefits as long as s/he does not remarry and does not have employer-sponsored health insurance. After the year has expired, a 20/20/15 spouse may purchase a health insurance policy through the Department of Defense. S/he is also entitled to commissary and exchange privileges only for a year after the divorce.

A former military spouse who doesn't meet the 20/20/20 or 20/20/15 criteria is not eligible for any health benefits, but may be eligible for the Department of Defense Continued Health Care Benefit Program, a premium based temporary health care coverage program for 36 months of coverage until alternative coverage can be obtained. However, you must enroll within 60 days of losing full military health care benefits.

10/10/10 Rule

The Defense Finance and Accounting Service (DFAS) office pays the former spouse a share of the military retirement pay if at least 10 years of a couple's marriage overlapped 10 years of "credible military service". When the DFAS receives a valid court order, it must start direct payments to the former spouse within 90 days. In states that divide the military pay for marriage that last less than 10 years, the military spouse must pay his former spouse directly. DFAS will not send payments to the former spouse.

How should the court order be drafted?

The court order must be drafted very specifically in order to reallocate the military spouse's retirement pay to a former spouse. The portion of retirement pay the ex-spouse receives must be part of the court order and expressed in dollars or as a percentage of disposable retired pay.

The proportion of military retirement that constitutes martial property before retirement can be defined as a fraction. The numerator represents the total number of months or years the parties were married during the member's military service. This number is divided by the total number of months or years of the member's military service. If the divorce takes place before retirement, the court can award a percentage of the service member's retired pay by using a different formula. To award the spouse 50% of the military retired pay, the court order would read as follows:

The spouse shall receive 50% of the marital share of the service member's disposable retired pay. The marital share is the fraction, the numerator is ____ months of marriage during the service member's creditable military service, divided by the total number of months of the member's creditable military service.

Once the service member retires, the DFAS would fill in the unknown denominator which would be the total number of months the service member accumulated before retirement.

Payment and Additional Information

It can. Disability pay is deducted before the disposable retirement pay is determined. The former spouse is eligible to receive only a portion of the disposable retirement pay. Thus, the service member could potentially increase the amount s/he receives in disability pay which may consequently reduce the amount the former spouse receives in retirement pay.

Once the order is filed with DFAS, payments will begin about 90 days after the application for payment is made, if the service member is already receiving retirement pay. This allows time to process the application and provide the member with the required notice.

When dealing with active military members, the payments will begin 90 days after the newly retired member becomes entitled to receive their first payment.

Court orders can be sent by fax or electronic or regular mail to the USPSPA, but must be certified authentic by the clerk of courts no more than 90 days prior to submission.

Federal law permits wage garnishment of a federal employee's wage earnings, which include his salary, commissions, retirement earnings and pension benefits, under certain circumstances. A divorced spouse may be able to obtain wage garnishment from his/her spouse's military wages and benefits. The wage garnishment may go toward court-ordered alimony or child support if s/he has children with the military service member. Federal law allows a wage garnishment of up to 50% from a veteran's disposable earnings if s/he has since remarried and currently supports a new spouse or child. If the veteran doesn't have a new spouse or child, wage garnishment of up to 65% may occur. To obtain wage garnishment, however, a spouse must meet the criteria in federal law and follow specified procedures under state law, such as the requirements to obtain a court order for spousal support and enforcement of the support order.

This does not mean, however, that the ordered amount cannot exceed 65% of the disposable retirement pay; only that any amount above 65% will not be collected by DFAS and will have to be collected directly from the service member.

If the parties were married less than 10 years, the payments must come directly from the military spouse to the former spouse. DFAS will not get involved when the marriage was less than 10 years.

If ordered by the court in the divorce decree, a former spouse can receive benefits if s/he is named as beneficiary under the Survivor's Benefit Plan. The Survivor's Benefit Plan (SBP) is an annuity that allows retired service members to provide continued income to a named beneficiary in the event of the retiree's death. A retiring service member will be enrolled in the SBP unless s/he declines to participate. If divorce occurs after retirement and the service member had initially elected to participate when retiring, the divorce terminates the initial beneficiary designation in favor of the "spouse". However, coverage may be continued in favor of a "former spouse" either voluntarily, to honor an agreement between the parties, or to comply with a court order. The former spouse, however, must elect "former spouse coverage" from the appropriate military finance center within one year of the date of the final divorce decree.

The premium is subsidized by the federal government, and deducted straight from the service member's retirement funds; therefore, the payments are not taxable. A service member must complete a DD Form 2656, Data for Payment of Retired Personnel Form when s/he retires. A former spouse may elect former spouse coverage independently by filing the DD Form 2656-10, Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election within one year of military member's filing of DD Form 2656. The Survivor Benefit Plan payments are adjusted annually to account for inflation.

If the divorce occurs after the service member has retired, the beneficiary designation is automatically terminated and the service member must redesignate the spouse as beneficiary. This can be done pursuant to a court order or on a voluntary basis. The former spouse has to choose "former spouse coverage" from the DFAS within one year of the finalization of the divorce.

Child support and alimony do not require a specified length of marriage and are not governed by the USFSPA.

The Thrift Savings Plan is a federal government sponsored retirement savings and investment plan. This is independent of the retirement account. The Thrift Savings Plan offers employees and members of the uniformed services the same types of savings and tax benefits that many private corporations offer their employees under 401(k) plans. A retirement benefits court order regarding the division of these accounts may be issued at any stage of a divorce, annulment, or legal separation proceeding. The court could award a specific dollar amount or percentage of the account to the former spouse, dependents, as of a specific past or current date.

A divorced military spouse may still be eligible to receive Social Security benefits earned by the ex-spouse during their employment or military service. The criteria to receive Social Security benefits earned by an ex-spouse depend on whether the ex-spouse is currently alive or deceased. If s/he is deceased, an ex-spouse who has not remarried and is at least 62 years of age may be able to collect Social Security benefits if the couple's marriage lasted for at least 10 years.

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