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  • Daniel Kienker

Divorce and the Military Spouse

Updated: Apr 15

The Uniform Services Former Spouse Protection Act (USFSPA) is Federal Law authorizing State Family Courts to treat military retirement as marital property to be divided in actions for divorce. Before its enactment, a Family Court had no authority to award any portion of the military member's military retirement to a spouse even though the spouse may have been married to the service member for 20 or more years. Simply put, State Courts had no authority to interfere with the Department of Defense (Federal) and military retired pay. The USFSPA changed that allowing State Family Courts to treat military retirement as any other marital property to be divided such as investments, savings, 401ks, debts, real, and personal property. However some military spouses contemplating divorce believe the USFSPA only applies to those who have been married to the military member for at least ten years. Not so. Regardless how long a military spouse has been married to Master Sargent Smith or Major Brown, he or she is still entitled to the "marital portion" of that person's military retirement. How then is the "marital portion" defined?

The marital portion is defined as ,"the Former spouse is awarded a percentage of the military member's disposable military retired pay to be computed by multiplying 50% times a fraction, the numerator of which is______months of marriage during the member's creditable military service, divided by the members's total number of months of creditable military service."

The Disposable pay definition was updated by the National Defense Authorization Act of 2017. Accordingly, Divorces entered after December 23, 2016 where the Court Order becomes final prior to the military member's retirement, the military member's disposable income is limited to the" amount of basic pay payable to the member for the member's pay grade and years of service at the time of the Court Order. Additionally, a spouse cannot receive, is not entitled to more than 50% of the member's disposable retired pay. But in cases where both payments under the USFSPA and a garnishment for child support or spousal support, the total amount of direct payments to the former spouse may not exceed 65% of the disposable retired pay.

There are also commissary, post-exchange and Tricare care privileges a former spouse may be entitled to if he or she was married to the military member for 20 or more years during which the military member served at least 20 years of creditable military service. There lesser entitlements for a 15 year overlapping marriage with the member's military service. These are important entitlements a spouse should inquire about when seeking the advice of a Divorce attorney.

When contemplating Divorce, there are many issues involved in determining what a former spouse is and is not entitled to under the USFSPA. If you are confronting the possibility of divorce of have begun the divorce process you are highly encouraged to consult an attorney to answer all of your questions and who will ensure you receive your full entitlement. There are also many sources of information on-line about the USFSPA to refer to get a general idea of what you may be eligible for. This short piece by no means purports to be legal advice for anyone on the subject of the USFSPA and once again, you are urged to consult an attorney if you have questions.

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