There is much confusion as to military entitlements and benefits of a former spouse under the USFSPA. MOAA has created a fact sheet that helps clarify some provisions of the USFSPA.
Frequenlty Asked Questions
Q. I understand that because my former spouse was married to me for over ten years while I was on active duty that she is entitled to a portion of my military retired pay. Is this true?
A. No. The USFSPA does not provide an entitlement to military retired pay. However, the USFSPA does provide an avenue for a former spouse to receive a direct payment of up to 50% of disposable retired pay when: the former spouse was married to a service member for 10 years or more concurrent with creditable service for retirement and a court treats the military retired pay as marital property.
Q. Does the USFSPA require division of military retired pay in a divorce?
A. USFSPA does NOT automatically divide retired pay as property. However, it does authorize state courts to treat military retired pay either as property of the retiree or as the property of the retiree and his spouse in accordance with the law of the jurisdiction of such courts, i.e. the USFSPA permits a court to award a portion of military retired pay to a former spouse as his or her property. (This is in addition to any other court award spousal and/or child support and/or division of other marital property.) A court may award more than 50 percent of a retired service member's pay check to the ex-spouse as property but the Government is authorized only to send up to 50 percent of "disposable" retired pay directly to the ex-spouse as property.
Q. What constitutes "disposable" retired pay for division in a divorce?
A. "Disposable" retired pay is defined in 10 U.S. Code, Section 1408(a) (4) of P.L. 97-252, as amended by P.L. 99-661, Nov. 14, 1986 and Section 555 of P.L. 101-510, Nov. 5, 1990. Disposable retired pay is the gross monthly pay entitlement, including renounced pay, less authorized deductions.
For divorce, dissolution of marriage, annulments, and legal separations that become effective on or after Feb. 3, 1991, the authorized deductions are:
(a) Amounts owed to the United States for previous overpayments of retired pay and the recoupments required by law resulting from entitlement to retired pay.
(b) Forfeitures of retired pay ordered by court-martial.
(c) Amounts waived in order to receive compensation under Title 5 or 38 of USC.
(d) Premiums paid as a result of an election under 10 U.S. Code Chapter 73 to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order.
(e) The amount of the members retired pay under 10 U.S. Code Chapter 61 computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list).