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military former spouse protection actBy Tara N. Brewer

Special to DadsDivorce.com

After 20 years of credible service, military members are eligible for retired pay benefits.

If that military member faces divorce, one of the largest concerns is how those benefits will be distributed, which is outlined by the Uniformed Services Former Spouses' Protection Act (USFSPA).

Before 1981, the courts disagreed on whether these benefits would be considered community property. Community property is defined as money eligible for division during a divorce.

However, an amendment in 1982 called the USFSPA clearly outlined how retired pay benefits would be distributed.

Military Retirement Pay Division

Overall, this act indicates that courts will consider military retired pay as community property. Because of the USFSPA, it’s unlikely that retired pay awarded to the ex-spouse can be amended.

The USFSPA states that the military can’t retain any portion of the retired pay for the ex-spouse, but the states can divide it. A maximum of 50% of military retired pay can be paid to the ex-spouse. However, if any alimony or child support is owed, a maximum of 65% can be taken.

Additionally, the marriage must have lasted at least 10 years of the military member’s service for the ex-spouse to request a portion of the community property.

Military retired pay entails any leftover pay (disposable pay) once:

1. Money owed to the United States for overpayments is paid.

2. Money is deducted for court martialed forfeitures.

3. Money is deducted using a percentage of the member’s disability.

4. Money is deducted because of an SBP election.

 

Military Benefit Plan

The Survivor Benefit Plan (SBP) is coverage for the ex-spouse since he/she was a beneficiary during marriage.

Military retired pay functions as a defined-benefit plan. After 20 years of military service, this plan should vest. Even if it doesn’t vest, it’s still considered community property. However, money placed in the plan before or after divorce is considered separate property.

Is My Ex Entitled To My Military Retirement?

The USFSPA doesn’t automatically entitle the ex-spouse to retired pay, though. It must be awarded in the final divorce decree, annulment or legal separation.  

If a portion of the military retired pay is awarded to the ex-spouse, they must apply to the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL).

Any retired pay awarded to the ex-spouse is distributed in the form of an annuity at a set monthly sum.

It’s important that a military member specifies a certain dollar amount for distribution. This dollar amount ensures that the ex-spouse isn’t awarded a cost of living adjustment.

Payments to the ex-spouse don’t begin until 90 days after the military member is entitled to the retired pay.

Certain conditions may affect the distribution of military retired pay. For example, if another ex-spouse is awarded this pay also, then payment is done on a first-come, first-service basis. However, remarriage of an ex-spouse doesn’t affect their awarded retired pay.

If you would like to inquire more about the Uniformed Services former Spouses’ Protection Act (USFSPA), please contact Cordell & Cordell to discuss your rights.


Comments (2)Add Comment
0
Nephew
written by William L. Carrasquillo, November 17, 2012
Hi,

My uncle is a Marine Corp Vietnam Vet. He was one of three soldiers out of 28 that made it through a burning tranport vehicle. He has a 100% disability from his wounds.

He ended up working undercover for the police department in Brevard County. He eventually graduated through the ranks and he retired as a Major.

About 14 years ago he married a fellow police officer in Tampa, Fl. She is also a retired police officer. One morning during breakfast, they got in an arguement and she stabbed him in the chest with a fork.

He dropped the charges because he did not want her,as a retired police officer, to have a criminal record.

He filed for divorce and she contered with the same. Now she is trying to get half of the VA disability.

They have no children together. I know Florida has a 50/50 rule on divorce issues. It's primarily what she appears to be basing her case on.

No, he does not have a prenup or anything like that and they are still married. He lives in Melbourne and she lives in Clearwater.

There's more concerning the firm he has been working with but I won't go in to that.

I told him I had heard about a firm on WDBO radio that I thought could possibly help. Do you see any way my uncle can protect his disability income?

Thank you,

Lenny Carrasquillo
0
Division of VA Disabilty
written by Michael McKown, April 24, 2014
VA and military disability pay CANNOT be divided! There is a federal statute that denys division - U.S.C. 1501. Any court that orders division of disability pay is in direct violation of federal law and can by sactioned by the U.S. Department of Justice.

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