By 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.