Specifying the Division of Military Retirement Annuity in Divorce

C

ChuckyD

New Member
Jurisdiction
Virginia
Hello –

My wife and I are pursuing an uncontested divorce where we have agreed on the division of all marital assets, to include my military retirement pay. We have employed an attorney to prepare and file the paperwork. My question concerns the language required in the final decree to effect the division of my military retirement annuity as we've agreed. My understanding is that a separate court order beyond the final decree is not necessary, and that the language in the decree must specify the division as a percentage of the disposable retirement pay and/or a fixed dollar amount. Is this correct, and are there any other considerations we should make? Thanks.
 
ChuckyD said:
Is this correct, and are there any other considerations we should make?
Click to expand...


How many years will you have served upon your retirement?

How many years have you and your spouse been married?


ChuckyD said:
My understanding is that a separate court order beyond the final decree is not necessary, and that the language in the decree must specify the division as a percentage of the disposable retirement pay and/or a fixed dollar amount. Is this correct, and are there any other considerations we should make?
Click to expand...


You are in for a HUGE surprise, mate.

If you've been married for at least TEN YEARS, your soon to be FORMER spouse is entitled to 50% of your retirement pay for the REST of her/his life, a military dependent ID Card for the remainder of his/her life, PLUS all benefits and privileges you'll RETAIN until you enter eternal rest.

However, should he/she remarry before 55, some of those bennies will be lost.

The vast majority of FORMER MILITARY SPOUSES choose to NEVER remarry, so as NOT to lose any of those great perks and all that moola!!!


Impact of the Uniformed Services Former Spouse Protection Act on Survivor Benefit Plan designation
Under the Uniformed Services Former Spouse Protection Act, a former spouse can be designated as a Survivor Benefit Plan beneficiary if the spouse was previously listed as a spouse beneficiary, with the following considerations:

Voluntary or court-ordered designation

Divorce after retirement: The former spouse's coverage will be the same amount as the spouse coverage.

Divorce before retirement: The specific coverage level should be directed by court order.

Former spouse remarriage before age 55: Eligibility as a beneficiary is lost unless the remarriage ends, and then eligibility is restored.

The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. Under this law, former spouses may be entitled to portions of the military member's retirement pay, medical care, and exchange and commissary benefits.

The Uniformed Services Former Spouse Protection Act:

Allows state courts to divide disposable military retired pay between the service member and spouse

Allows former spouses to receive a portion of retired pay directly from the government in some circumstances

Grants some former spouses access to health care at military treatment facilities

Grants some former spouses access to military exchanges and commissaries

Grants benefits to some victims of spousal or child abuse


The Uniformed Services Former Spouse Protection Act doesn't:

Require courts to divide military retired pay
Establish a formula for dividing military retired pay
Award a predetermined share of military retired pay to former spouses
Place a ceiling on the percentage of disposable retired pay that may be awarded
Require an overlap of military service and marriage as a prerequisite to division of military retired pay as property
Jurisdiction under the Uniformed Services Former Spouse Protection Act


The Uniformed Services Former Spouse Protection Act prevents a court from treating retired pay as the property of the service member and spouse unless the court has jurisdiction over the service member based on the service member's:

Residence other than because of military assignment
Domicile
Consent to the court's jurisdiction
Direct payment of retired pay
Direct payment of retired pay may be made to a former spouse from the military pay centers if there's a court order or a property settlement that was ordered, ratified or approved by the court, and if the final order specifically provides that payment is to be made from disposable retired pay for one of the following:

Child support
Alimony
Division of retired pay as property if the former spouse was married to the member for 10 years or more, during which time the member performed 10 years or more of creditable service, and the order expresses payment in dollars or a percentage of the member's disposable retired pay
Direct payments will terminate on these events, whichever comes first:

Terms of the court order are satisfied
Death of the retired service member
Death of the former spouse
Procedure for request for direct pay
The former spouse must send the following items to the designated agent of the member's uniformed service:

Signed DD Form 2293, "Application for Former Spouse Payments from Retired Pay"
A copy of the court order
Other accompanying documents that provide for payment of child support, alimony or division of property, certified by an official of the issuing court within the previous 90 days
Notification to the designated agent can be made by:

Regular mail
Email
Fax
Certified mail
No later than 30 days after effective service, the Defense Finance and Accounting Service:

Will send written notice to the affected member at the last known address
Will consider any response received from the service member
May reject any request for direct pay that doesn't satisfy requirements
Won't honor the court order whenever it's shown to be defective, modified, superseded or set aside

No later than 90 days after effective service, the Defense Finance and Accounting Service will make payment to the former spouse and inform him or her of the amount to be paid, or send the former spouse an explanation of why the court order wasn't honored.




Impact of the Uniformed Services Former Spouse Protection Act on Survivor Benefit Plan designation

Under the Uniformed Services Former Spouse Protection Act,
USFSPA FAQs | Military OneSource
a former spouse can be designated as a Survivor Benefit Plan beneficiary if the spouse was previously listed as a spouse beneficiary, with the following considerations:

Voluntary or court-ordered designation

Divorce after retirement: The former spouse's coverage will be the same amount as the spouse coverage.

Divorce before retirement: The specific coverage level should be directed by court order.

Former spouse remarriage before age 55: Eligibility as a beneficiary is lost unless the remarriage ends, and then eligibility is restored.

USFSPA FAQs | Military OneSource





The Uniformed Services Former Spouse Protection Act | Military Spouse Divorce


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Defense Finance and Accounting Service > Garnishment > usfspa > faqs

Are former spouses of military retirees automatically entitled to a portion of the retirees' retired pay?
No, there is no Federal law that automatically entitles a former spouse to a portion of a member's military retired pay. A former spouse must have been awarded a portion of a member's military retired pay in a State court order. The Uniformed Services Former Spouses' Protection Act (USFSPA), Title 10, United States Code, Section 1408, passed in 1981, accomplishes two things. First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. Second, it provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member's retired pay. Retired pay as property payments are prospective only. Retired pay arrears cannot be collected under the USFSPA.

How much will a former spouse receive under the USFSPA?

The maximum amount that can be paid under the USFSPA is 50 percent of the member's disposable income. DFAS will pay a former spouse the monthly amount or amounts awarded in the pertinent court order up to the 50% limit. The implementing regulation requires DFAS to construe all percentage awards as a percentage of disposable retired pay, which is gross retired pay less authorized deductions. Also, according to the implementing regulation, percentage awards will automatically receive a proportionate share of the member's cost-of-living adjustments (COLAs), but COLAs are not available for fixed dollar amount awards, even if COLAs were awarded in the court order.

Cases that are paying under both the USFSPA and 42 U.S.C. § 659 (income withholding order) will pay up to 65 percent of the member's disposable income. See question 2 for additional information.

Where can I get Survivor Benefit information?
See the SBP pages or the DD2656-10 instructions. If you have any questions regarding SBP coverage, you may call Retired and Annuitant Pay at 800-321-1080.

milConnect: Benefits and Records for DoD Affiliates

Q: Can ex-spouses keep Department of Defense (DoD) benefits?

A: You may be able to keep your DoD benefits. To keep benefits after the divorce, the former spouse must meet specific criteria. By law, the eligibility of former spouses is divided into categories that determine their entitlement to benefits and privileges.

Please review the following criteria to determine whether you may be eligible for continued DoD benefits.

  • Were you married to the Uniformed Service sponsor for at least 20 years?
  • Does the sponsor have at least 20 years of creditable service toward retirement?
If you answered "no" to either or both questions, you are not eligible for continued DoD benefits. You may want to look into the Continued Health Care Benefit Program (CHCBP) to see if you qualify for coverage.

If you answered "yes" to both questions above, please review the other criteria that are used to determine eligibility for continued benefits. They are based on the overlap of the marriage and the member's creditable service.
  • If your marriage and the sponsor's creditable service overlapped by at least 20 years, you are entitled to commissary, exchange, morale, welfare, and recreation privileges as well as medical benefits.
  • If your marriage and the sponsor's creditable service overlapped by at least 15 but less than 20 years, you are only entitled to medical privileges for 1 year from the date of the divorce, dissolution, or annulment decree. However, if the divorce occurred prior to April 1, 1985, a former spouse is entitled to medical benefits.
Initial determination of eligibility for a former spouse must be performed by the uniformed service sponsor's parent Service. All individuals who lose TRICARE eligibility or other coverage under the Military Health System are eligible to purchase temporary health care coverage under the uniformed services Continued Health Care Benefit. Please visit the CHCBP website for more information.
 

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