Many current or former service members and their current or former spouses are generally aware of the Uniformed Services Former Spouses’ Protection Act. However, from my experience in working with military family law matters, it is an area of law that many people misunderstand. The purpose of this article is to help members and former spouses better understand their rights and obligations under the “USFSPA”.
The Uniformed Services Former Spouses’ Protection Act is a federal law codified at 10 U.S.C. § 1408, et. seq. The Act gives state courts the authority to treat disposable retired pay as property of the member and spouse in divorce. In the definitions section of the Act, the law specifies that only “disposable retired pay” as defined in the act is divisible. The Act prescribes important limitations, i.e. it only applies when the spouse or former spouse was married to the service member for at least ten years during which time the member performed at least ten years of service creditable for retired pay. The law does not authorize courts to order any member to apply for retirement at any specific time. All payments under the USFSPA cannot exceed 50 percent of the disposable retired pay of a member. If there is more than one court order, they are satisfied on a “first-come, first-served basis”.
Disposable Retired Pay
Disposable retired pay is retired pay minus any overpayments, disability pay including VA disability, and Survivor Benefit Plan payments. It is defined in 10 U.S.C. § 1408(a)(4)(A) as: “[T]he total monthly retired pay to which a member is entitled less amounts which— (i) are owed by that member to the United States for previous overpayments…; (ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive [VA Disability pay]…; (iii) in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter 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); or (iv) are deducted because of an election under chapter 73 of this title [10 USCS §§ 1431 et seq.] to provide an annuity to a spouse or former spouse [commonly known as Survivor Benefit Plan or SBP].
Another important point to understand is that the USFSPA does not require the former servicemember to calculate payments for child support, alimony, or division of property. Instead, the Secretary must be served with an applicable court order, and then the Defense Finance Accounting Service (“DFAS”) will make the required payments “from the disposable retired pay of the member to the spouse or former spouse…”
By way of example, suppose a military servicemember served twenty years and retired. He was married for twelve of those years to his former wife. In their Tennessee divorce, the former wife was awarded a percentage of the servicemember’s retirement benefits. It is phrased that she is awarded a percentage of disposable retirement benefits calculated as 120 months divided by total months of creditable service (240 in this example) at the rank the servicemember held at the time of divorce. The increased pay due to increased rank after divorce does not go to the former spouse. In this scenario, his monthly retirement pay is calculated by DFAS as $4,400 per month including $400 in VA disability and $300 in SBP. He therefore has disposable retirement pay of $3,700. DFAS determines the solution to the formula is $1,600. Thus, the former spouse will receive a monthly payment of $1,600 and the former servicemember will receive a monthly payment of $2,800.
As a second example, a military servicemember retired after twenty-six years of service. She was married for nine years to her former husband. Since the marriage did not last for ten years of creditable service, there is no reason to continue the analysis here as the USFSPA does not apply. Any state court order that divides her retired pay between her and her former husband is in error and superseded by the USFSPA.
As a third example, a military servicemember retired after twenty-four years of service. He was married for eighteen years of service to his former wife. The former servicemember was medically retired by the military and is awarded 100% disability from the VA. DFAS calculates his retirement benefits as $6,000 per month including $6,000 in disability payments. Thus, this servicemember has $0 in disposable retirement pay. Under USFSPA, the former spouse cannot receive any payments from DFAS even if a valid court order was served on DFAS. The former spouse has no redress available through DFAS. She could, however, have received alimony in the divorce separate from her former husband’s retirement benefits.
United States Supreme Court Cases
The United States Supreme Court has on at least two occasions decided disputes involving the payment of military retirement benefits pursuant to the USFSPA. In Mansell v. Mansell, the Court discussed the issues as follows: “[T]he language of the Former Spouses’ Protection Act. Section 1408(c)(1) of the Act affirmatively grants state courts the power to divide military retirement pay, yet its language is both precise and limited. It provides that ‘a court may treat disposable retired or retainer pay . . . either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.’ § 1408(c)(1). The Act’s definitional section specifically defines the term ‘disposable retired or retainer pay’ to exclude, inter alia, military retirement pay waived in order to receive veterans’ disability payments. § 1408(a)(4)(B). Thus, under the Act’s plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property; they have not been granted the authority to treat total retired pay as community property… we hold that the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” 490 U.S. 581, 588-95, (1989).
The United States Supreme Court once again addressed this issue in the case of Howell v. Howell, whereupon the Court stated: “State courts cannot ‘vest’ that which (under governing federal law) they lack the authority to give. Cf. 38 U.S.C. §5301(a)(1) (providing that disability benefits are generally nonassignable)…we note that a family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support.” 137 S. Ct. 1400, 1405-6 (2017). Together these cases show that state courts may not award disability retirement pay to former spouses as a result of the definitions in the USFSPA.
Note from the Author
Harnessing my fourteen-year career in the military and my experience as an attorney, I take pride in providing value to servicemembers, former servicemembers, military spouses, and former military spouses. I enjoy deciphering the interaction and nuances of family law and military law in Tennessee. If you have additional questions, I encourage you to explore these practice areas on our website or call Cole Law at 615-490-6020 to arrange a consultation with me.