What is the Uniformed Services Former Spouse Protection Act (USFSPA) and what should I know?
It may seem like divorcing a service member is an intimidating venture, and it rightfully may be.However, the law protects the rights and interests of family members just as much as their counterparts. One of these such laws is the Uniformed Services Former Spouse Protection Act (USFSPA). As the name implies, this Act was created as an added protection for former spouses
of military members. This grants former spouses a possible entitlement to direct portions of their former military spouse’s benefits, such as medical care and retirement pay. Below, is a breakdown of a few important points about this confusing law. There are a few details that are important to understand and with the help of a military family law attorney should be very manageable.
Am I eligible for retired pay?
The first question you have to ask in regards to your eligibility revolves around the length of the marriage and the duration of you or your spouse’s military service. The "10/10" rule to determine basic eligibility. This means, that to be eligible, your marriage must have lasted 10 years, and that the service spouse has performed at least 10 years of military service towards
creditable retirement eligibility. So if you and your spouse have been married for 15 years, and in those 15 years your spouse has served in the military for 10 years, then you qualify. On the other hand, if you have been married for 15 years, and your spouse has only served in the military for 9, then you do not. Now, there is also a distinction to be made here. The 10/10 rule makes you eligible for direct payments of a portion of the former spouse’s retired pay.
However, even if you don’t satisfy the 10/10 rule, you may still be entitled to a
portion of the former spouse’s retired pay to be paid by the member under the divorce laws and divorce decree retired pay.
What are some other benefits?
Furthermore, being what is known as a 20/20/20 spouse entitles you to other benefits such as Tricare coverage and commissary and exchange privileges continuing after the divorce. Similar to the 10/10 rule, the designation of a 20/20/20 spouse is based on duration. Here, however, you have had to be married for 20 years, with at least 20 years of creditable military service to
retirement eligibility, AND that the period of marriage overlapped at least 20 years of service. Simply put, the biggest difference here, other than the additional time served to the military and each other is the requirement that the marriage overlap the years of service. One other category for continued benefits is the 20/20/15. This is for those spouses who did not meet the
requirement of 20 years of marriage overlapping service. Here, spouses who have been married for 15 years that overlapped military service are still eligible for military health benefits for a one-year period. It is important to note that non-military former spouses are not left high and dry after that year. A health policy is available for purchase to those who do not meet the full 20/20/20 requirements.
Don’t Forget, Jurisdiction still matters!
It is very important to note that a court must have jurisdiction over the service member before a court can treat retirement pay as marital property. This is based on the service member’s domicile or residence other than for military assignment. Now while this may sound like a daunting statement, a few factors can help you figure out if you have a case in the particular state. Merely look to see if the military spouse is a legal resident of the state in which legal proceedings will take place in or if they reside in that state for any reason other than military assignment. Also, the service member can consent to the court’s jurisdiction over their retired pay in an equitable distribution proceeding. However, if none of those apply, then a different state must be chosen for these proceedings.
Am I Automatically Entitled to My Former Spouse’s Retirement Pay?
No! This is quite the common misconception. Even though you may have met the requirements as above, you still have to be awarded a percentage or amount of your military spouse’s retirement pay by the divorce court. The USFSPA merely authorizes State courts to divide retirement pay as either marital assets or community property.
I Was Designated as the Beneficiary for my Spouse’s Survivor Benefit Plan. Will the USFSPA Affect That?
The former spouse can remain as the beneficiary of the SBP with the
following considerations in mind.First, the designation must be either voluntary or court-ordered. Second, and most importantly, the SBP designation for a former spouse must be made within one (1) year of the
divorce decree date, or such will be forever lost. You can see the SBP article for more information.