Uniformed Services Former Spouse Protection Act
Learn about the Uniformed Services Former Spouse Protection Act and what it entails, including the division of retired pay, continuation of benefits, and more. Get insights on the authorization of state courts to divide military retired pay as property and compliance with court orders for payments to former spouses.
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Uniformed Services Former Spouse Protection Act and Beyond Mary M. Benzinger, Esq. Legal Assistance Policy Division Client Services Branch (703) 696-1477 Mary.Benzinger@hqda.army.mil September 26, 2007 1
Overview Division of retried pay Continuation of Health/Dental Benefits Payment of child support and spousal support from retired pay Proposed legislative changes Other Military Privileges/Benefits September 26, 2007 2
Uniformed Service Former Spouse Protection Act Authorizes state courts to divide military retired pay as property Directs compliance with Court orders specifically providing for the payment from the disposable retired pay of a member to the spouse or former spouse of that member. September 26, 2007 3
USFSPA DOES NOT Require division of retired pay Dictate a formula for division Whether and how division occurs is a matter for the state courts/laws to decide September 26, 2007 4
Uniformed Services Armed Forces Commissioned Corps of NOAA and PHS September 26, 2007 5
Disposable retired pay =Total monthly retired pay to which a member is entitled Does NOT include pay waived for disability paid to you by the VA Court can t direct payment of more than 50% to former spouse Payable no less than monthly & terminates according to court order, death of Member or death of former spouse September 26, 2007 6
Retired Pay as Property Does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse. Does not authorize any court to order a member to apply for retirement or retire at a particular time in order to effectuate any payment under this section. September 26, 2007 7
Division Methods Fixed dollar amount or percentage (N.B. fixed dollar amounts do not get COLAs - DoD proposed legislation to change this) Formula awards (yrs of marriage (or points earned) over total yrs (points) of service x a multiplier) Hypothetical based on basic pay at time of division Hypothetical based on basic pay at time of eligibility September 26, 2007 8
State application Formula used varies by state (you can agree on anything within DFAS recognized formulas) Gillmore Rule and community property states. DoD proposed legislation: Base all awards of military retired pay on Member rank and time served at the time of divorce (prospective only) and prohibit Gillmore distributions September 26, 2007 9
The 10 year rule Effects direct payment to former spouse by DFAS - NOT the entitlement of former spouse to division of retired pay If not married 10 or more years during which SM performed 10 years of service, DFAS cannot pay the former spouse directly If 10 year test not met, SM pays former spouse directly DoD proposed legislation: revoke the rule. September 26, 2007 10
Direct Payment Application Former spouse must submit court order and DD 2293 for direct payment Must submit within 1 year of court order DoD proposed legislation: Permit Member to submit the application Extend application period from 1 yr to 5 yrs. September 26, 2007 11
State Court Jurisdiction to Divide Must have jurisdiction over Member by reason of Residence, other than because of military assignment; Domicile; or Consent to the court s jurisdiction DoD proposed legislation to eliminate this jurisdictional requirement September 26, 2007 12
Survivor Benefit Plan DFAS can only deduct the premium from the Member s disposable retirement pay. Only one SBP spouse may be designated ( deemed election rule) DoD proposed legislation: permit courts and parties to determine who pays the premiums allow multiple SBP beneficiaries (presumption in proportion to allocation of retirement pay) September 26, 2007 13
Small benefits DoD proposed legislation: If the present value of former spouse s share does not exceed $5000.00, upon election by former spouse, Secretary shall pay out lump sum directly (may be rolled over into IRA). Applies to retired pay and SBP annuity. September 26, 2007 14
Child and Spousal Support orders Child and spousal support orders may be served on the Secretary (or designated agent) and will be paid out of disposable pay. September 26, 2007 15
Multiple Court Orders Paid on a first-come, first-served basis. Conflicting court orders for same spouse or former spouse, least amount will be paid (if sufficient disposable pay available to do so) , the difference between the orders will be retained until such time as that Secretary is provided with a court order which has been certified by the member and the spouse or former spouse to be valid and applicable to the retained amount. Upon being provided with such an order, the Secretary shall pay the retained amount in accordance with the order. Member still liable to spouse or former spouse for balance owed if insufficient disposable income to pay all orders in full. September 26, 2007 16
20/20/20 Former Spouse Unremarried 20 years of marriage (date of marriage to date of divorce decree or annulment order) 20 years of creditable service At least 20 years of creditable service during the marriage September 26, 2007 17
20/20/20 Eligibility for Continued Health Coverage 20/20/20; and Does not have medical coverage under an employer-sponsored health plan Lifetime coverage Terminates upon remarriage and cannot be reinstated September 26, 2007 18
20/20/15 Former Spouse Unremarried 20 years of marriage (date of marriage to date of divorce decree or annulment order) 20 years of creditable service At least 15 years (no more than 20) of creditable service during the marriage September 26, 2007 19
20/20/15 Eligibility for Continued Health Coverage 20/20/15; and Does not have medical coverage under an employer-sponsored health plan One year of coverage (for Divorce decrees on or after April 15, 1985) Can purchase continuation policy (available for not less than two years) September 26, 2007 20
Commissary/Exchange Privileges unremarried 20/20/20 Lifetime privileges Terminates upon remarriage and can be reinstated upon termination of that remarriage September 26, 2007 21
Local Legal Assistance Army Fort Myer, (703) 696-0761 Legal Assistance Policy Division-Rosslyn (703) 696-1477 Fort Belvoir, (703) 805-4381 Walter Reed, (202) 782-1550 Air Force Bolling AFB, (202) 767-4772 Andrews AFB, (301) 981-2042 Marines Henderson Hall, (703) 614-1266 Navy Navy Yard, (202) 685-5569 September 26, 2007 22
Lawyer Referral Services Virginia Bar Association: http://www.vsb.org/vlrs.html Telephone Number: (804) 775-0808 Maryland Bar Association Montgomery County: (301) 279-9100 Prince George s County: (301) 952- 1440 D.C. Bar Association: http://www.badc.org/html/lawref.htm Telephone Number : (202) 296-7845 September 26, 2007 23
