The Uniformed Services Former Spouses’ Protection Act (USFSPA)
There are a number of differences involved when a divorce involves a military member. One of those differences is that federal law applies to the division of the military member's retired pay.
Although the USFSPA under 10 USC § 1408 does not automatically entitle a former spouse to a portion of the military member’s retired pay, it does extend to state courts the right to distribute military retired pay to a former spouse. It also provides a method for enforcing the court order dividing military retired pay. Court orders enforceable under the USFSPA include final decrees of divorce, dissolution, annulment, and legal separation, and court-ordered property settlements incident to such decrees. The pertinent court order must provide for the payment of child support, alimony, or retired pay as property, to a former spouse.
USFSPA Limits on State Court Jurisdiciton
Under the USFSPA, a former spouses is only entitled only to the "marital portion" of the servicemembers' retired pay, defined as, “that portion which was earned during the period of marriage.” This is limited to 50 percent of the servicemember's disposable retired pay, defined as total retired pay, minus the following:
Forfeitures ordered by a court-martial
Amounts overpaid to the government
Pay waived in order to receive VA disability
Survivor Benefit Plan (SBP) premiums received by the former spouse
Dividing Retired Pay as a Marital Asset
Under the USFSPA, the state court order must express the division of military retirement pay to the former spouse as:
a fixed dollar amount, or
a percentage of disposable retired pay (gross retired pay less allowable deductions).
If the parties are divorced while the member is still on active duty, the former spouse’s award may be expressed by an acceptable formula or hypothetical retired pay award. An award of a percentage of a member's retired pay is automatically construed under the USFSPA as a percentage of disposable retired pay. A Qualified Domestic Relations Order (QDRO) is not required to divide retired pay as long as the former spouse's award is set forth in the pertinent state court order.
Disposable Pay Defined
The National Defense Authorization Act (NDAA) of 2017, in Section 641, amended the definition of disposable pay for divorces entered after December 23, 2016. In cases where the order becomes final prior to the 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” and increased by the cost-of-living amounts granted to military retirees from the time of the (divorce) to the date the member retires.
The "10/10 rule" governs the manner in which the former spouse of a servicemember may collect his or her court-ordered portion of the servicemember's retired pay directly from the government. While state courts retain jurisdiction over military divorce cases, including orders of alimony and property division, USFSPA helps enforce divorce-related court orders. Under the USFSPA, the 10/10 rule allows eligible former spouses of servicemembers to receive their court-ordered portion of the servicemember's retired pay directly from the Defense Finance and Accounting Service (DFAS). Otherwise, this payment must be procured from the servicemember, which may be inconvenient or logistically difficult.
If the state court hearing in your military divorce case awards retired pay (as marital property) to you as a former spouse of a servicemember, the payment can be sent directly to the former spouse if the following two requirements are met:
The servicemember and former spouse were married to each other for at least 10 years; and
During the time of marriage, the servicemember performed at least 10 years of military service creditable toward retirement eligibility.
How to Apply for Direct Payments Under the USFSPA
If you qualify for direct payments of your court-ordered portion of a servicemembers retired pay, you will need to file DD Form 2293 along with a court-certified copy of the applicable court order (either fax or mail).