Are Ex-Spouses Entitled to Military Retirement? A Deep Dive into the Uniformed Services Former Spouses’ Protection Act

Yes, ex-spouses can be entitled to a portion of a military retiree’s pension, but it’s not automatic. Eligibility hinges on several critical factors, primarily centering around the length of the marriage and the duration of overlapping military service. It’s a complex area governed by federal law, specifically the Uniformed Services Former Spouses’ Protection Act (USFSPA), and influenced by state divorce laws. Understanding the nuances of this act is crucial for both service members contemplating divorce and their spouses.

Understanding the Uniformed Services Former Spouses’ Protection Act (USFSPA)

The USFSPA is the cornerstone of determining an ex-spouse’s rights to a military pension. Passed in 1982, this federal law allows state courts to treat military retirement pay as marital property subject to division in a divorce. Before USFSPA, military pensions were often considered the sole property of the service member. The act doesn’t require a division of retirement pay, but it permits it, leaving the decision to the discretion of the state court handling the divorce.

The 10/10 Rule: A Critical Threshold

A key provision of the USFSPA is the “10/10 rule.” This rule dictates that for the Defense Finance and Accounting Service (DFAS) to directly pay an ex-spouse a portion of the military retirement, the marriage must have lasted at least 10 years, and there must have been at least 10 years of overlapping military service. If this 10/10 rule is met, the court order can be sent directly to DFAS, and they will handle the division and payment. However, even if the 10/10 rule is not met, a court can still award the ex-spouse a portion of the retirement, but the service member will be responsible for making the payments directly to the ex-spouse; DFAS won’t get involved.

Determining the Divisible Portion: The Marital Fraction

If the court determines that the ex-spouse is entitled to a portion of the military retirement, it must then determine how much of the pension is divisible. This is typically accomplished using a formula known as the “marital fraction.” The marital fraction usually looks something like this:

Years of Overlapping Marriage & Military Service / Total Years of Military Service

This fraction represents the portion of the military retirement that was earned during the marriage and is therefore considered community or marital property. The ex-spouse’s share is typically 50% of this marital fraction, although the exact percentage can vary based on state law and the specific circumstances of the divorce.

Disposable Retired Pay: What’s Actually Divisible?

It’s crucial to understand that only “disposable retired pay” is subject to division. Disposable retired pay is defined as the total retired pay less certain deductions, such as:

• Amounts waived to receive disability compensation from the Department of Veterans Affairs (VA).
• Amounts owed to the United States for previous overpayments.
• Amounts deducted for Survivor Benefit Plan (SBP) premiums, if the ex-spouse is the beneficiary.
• Certain other court-ordered payments.

This means that if a service member waives a portion of their retirement pay to receive VA disability benefits, that waived amount is generally not subject to division with the ex-spouse. This is a frequently litigated issue and can significantly impact the amount the ex-spouse receives.

Survivor Benefit Plan (SBP): Protecting the Ex-Spouse

The Survivor Benefit Plan (SBP) is a program that allows a retiree to designate a beneficiary to receive a portion of their retirement pay after their death. A divorce decree can mandate that the service member elect to cover the ex-spouse under the SBP. This ensures that the ex-spouse continues to receive a benefit even after the service member passes away. The cost of the SBP premium is deducted from the retiree’s disposable retired pay, as noted above, if the ex-spouse is the SBP beneficiary.

Frequently Asked Questions (FAQs)

Here are some frequently asked questions related to ex-spouses and military retirement, designed to provide further clarity and guidance:

1. What if I remarried after my divorce from the service member? Does that affect my eligibility?

No, generally, your remarriage does not affect your right to receive a portion of the military retirement, provided the divorce decree awarded you a share.

2. The divorce happened before the USFSPA was enacted. Am I out of luck?

Potentially. The USFSPA is not retroactive in all cases. However, you should consult with an attorney specializing in military divorce law to determine your options, as some states may have found ways to address pre-USFSPA divorce decrees.

3. How does VA disability affect the amount I receive from my ex-spouse’s retirement?

As mentioned earlier, any amount the service member waives from their retirement to receive VA disability is generally not divisible. This can significantly reduce the amount the ex-spouse receives. It is very important to consult with an attorney regarding this.

4. My ex-spouse is refusing to pay me my share of the retirement. What can I do?

If DFAS is directly paying you, this is less likely to happen. If, however, the service member is responsible for making the payments, you can pursue legal action to enforce the court order. This might involve filing a contempt of court action or seeking other legal remedies.

5. Does the USFSPA apply to all branches of the military?

Yes, the USFSPA applies to all branches of the United States Uniformed Services including the Army, Navy, Air Force, Marine Corps, Coast Guard, and certain Public Health Service and National Oceanic and Atmospheric Administration personnel.

6. How do I obtain a copy of my ex-spouse’s military service record to prove the length of service?

You can request military service records from the National Archives and Records Administration (NARA). You will typically need to provide documentation, such as the divorce decree, to prove your entitlement to the information.

7. What if my divorce decree doesn’t specifically mention military retirement?

If the divorce decree doesn’t address military retirement, you may be able to petition the court to reopen the case and modify the decree to include a provision for the division of retirement pay. However, time limits often apply, so it’s crucial to act quickly and consult with an attorney.

8. My ex-spouse is about to retire. What steps should I take to ensure I receive my share of the retirement?

First, obtain a certified copy of your divorce decree. Then, consult with an attorney to ensure the decree meets the requirements for direct payment from DFAS. If the 10/10 rule is met, the attorney can assist you in preparing the necessary paperwork and submitting it to DFAS for processing.

9. Is there a limit to how much of the military retirement I can receive?

Yes. Federal law limits the total amount that can be paid to an ex-spouse from military retirement pay to 50% of the disposable retired pay if the service member is also paying child support or alimony. If there are no orders for child support or alimony, the limit is 65%.

10. What happens if my ex-spouse remarries? Does their new spouse have any claim to my share of the retirement?

No, your ex-spouse’s remarriage does not affect your court-ordered share of the military retirement. Their new spouse has no claim to your portion.

11. Can I waive my right to a portion of the military retirement?

Yes, you can waive your right to a portion of the military retirement as part of a divorce settlement. This is often done in exchange for other assets or considerations. However, it’s crucial to fully understand the long-term financial implications before making such a decision.

12. Where can I find more information about the USFSPA and military divorce?

You can find more information on the DFAS website (https://www.dfas.mil/), as well as through legal aid organizations, bar associations, and attorneys specializing in military divorce law. Remember that legal advice varies widely depending on the state you live in.