Contrary to popular belief, the Uniformed Services Former Spouse Protection Act (USFSPA) does not make the division of retirement pay mandatory if a member of the military and his or her spouse divorce. According to the 1981 legal act: (from the Defense Finance and Accounting Service - DFAS)
The Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. 1408, accomplishes two things:
- It recognizes the right of state courts to distribute military retired pay to a spouse or former spouse (hereafter, the former spouse), and
- It provides a method of enforcing these orders through the Department of Defense.
The USFSPA does not automatically entitle a former spouse to a portion of the member's retired pay. A former spouse must have been awarded a portion of a member's military retired pay as property in their final court order. The USFSPA also provides a method of enforcing current and/or previously owed (arrears) child support and current alimony awarded in the court order. For more information please see 10 USC 1408 and chapter 29 in the DoD Financial Management Regulation.
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.
Court orders awarding a portion of military retired pay as property that were issued prior to June 26, 1981, can be honored if the requirements of the USFSPA are met. However, amendments issued after June 25, 1981, to court orders issued prior to June 26, 1981, which were silent as to providing for a division of retired pay as property, cannot be enforced under USFSPA. Also, for court orders issued prior to November 14, 1986, if any portion of a member's military retired pay is based on disability retired pay, the orders are unenforceable under the USFSPA.
State Divorce Court
The USFSPA simply allows a state divorce court to treat military retirement pay as property of the military member, or joint property, depending on the laws of that particular state (in other words, if the state law allows division of civilian retirement pay for divorce, it will usually also allow division of military retired pay for divorce). The amount of division would be according to the laws of the state that the divorce was granted in.
The act also allows the military to pay the ex-spouse directly (if a court orders retirement pay division), if they were married for more than 10 years, with more than 10 years overlapping military service. If the marriage lasted for less than 10 years, or the couple's marriage did not overlap at least 10 years of service, the court can still order military retirement pay divided, but the military will not pay the ex-spouse directly. They would pay the member, and the member would be required to pay the court-ordered amount to the ex-spouse (or face possible contempt of court charges).
The amount of money the spouse gets is the percentage of time he/she was married to the military member. For instance, if the military member does 20 years and the spouse was only married to the military member for a total of 5 years, the spouse is not entitled to half of the retirement money. The spouse only can get half of the retirement pay if married the entire 20 year period the military member was in the service. The spouse is entitled to the corresponding percentage and the agreed upon amount during the divorce hearings.
A divorced military member can serve 19.9 years and not get retirement benefits for himself / herself and therefore the ex-spouse would also not be entitled to any benefits. This is a harsh option, but it has happened with military members leaving the military early (before 20 years) to avoid the obligation of splitting military retirement pay and other benefits.
More Legal Advise Links
A good resource for truths and myths you need to know if getting a divorce in the military.
Complete details are available in the Article, Division of Retired Pay.