When a military couple divorces, is the non-military spouse eligible to receive any of their ex’s retirement benefits? A law established in 1982, the Uniformed Services Former Spouses’ Protection Act (USFSPA), set out to answer this important question. But the answer is far from straightforward, which is why we assembled this FAQ to help you understand the nuances of the act.
Every state in the U.S. considers a military member’s retirement pay to be marital property. As such, every state in the U.S. has the potential power to allow for the disbursement of retirement pay to an ex-spouse.
That said, if you’re the ex-spouse of a military member, you cannot expect monthly checks to just start arriving. It’s more complicated than that. You must first be awarded part of your ex’s military pension by your state court in your divorce decree.
Familiarizing yourself with the Uniformed Services Former Spouses’ Protection Act (USFSPA) is an important first step toward securing your military retirement benefits.
What is the USFSPA?
Now a federal law, the USFSPA was designed in 1982 to clear up uncertainty about what happens to a military member’s retirement pay after divorce. According to the law, some former military spouses are entitled to receive a percentage of a U.S. military member’s retirement pay.
Notably, the pay must be awarded through a court order: It is not an “automatic” entitlement.
The ex-spouse of a retired military member may receive their pay directly from the military member or as a monthly check payment from the Defense Finance Accounting Service (DFAS).
But there’s a catch: the 10/10 rule.
The 10/10 rule
In order for an ex-spouse to receive money from the DFAS, the marriage must adhere to the 10/10 rule: It must have lasted a minimum of 10 years, and the service of the retired member must have overlapped with the marriage for a minimum of 10 years.
Frequently asked questions about USFSPA
Is an ex-spouse eligible for retirement payments before the military member retires?
In some states (like California), an ex-spouse can receive military retirement payments before the military member retires. Once again, a court order is required for this to occur, and it cannot occur in states that don’t permit it (like North Carolina).
Could military retirement payments be garnished for child support or spousal support?
A court order is required for a military member’s retirement pay to be routed to an ex-spouse for the purpose of child support or spousal support. The USFSPA specifies that not more than 65% of the military member’s retirement pay can be garnished for these purposes.
Could the value of a military member’s retirement pension be used as a negotiation chip in a divorce settlement?
In some cases, the value of a military member’s retirement benefits can be used in a settlement negotiation. For example, if both the military pension and the financial value of the marital home are on the table for splitting – and each asset is worth roughly the same amount – they could be used to cancel each other out. So, in a case like this, the non-military spouse might walk away without any share of the pension but with sole ownership of the marital home.
What about healthcare?
Unfortunately for ex-spouses of military members, the military health benefit TRICARE does not extend to them in all cases. To qualify for continued coverage, the marriage must have lasted for at least 20 years, the military member must have served for at least 20 years, and the marriage and military service must have overlapped for at least 20 years. This is known as the 20/20/20 rule.
As you can imagine, the 20/20/20 rule excludes a lot of divorcing military couples.
The 20/20/15 rule provides a bit of relief to a segment of the population. It states that if the marriage lasted for 20 years, the military member served for 20 years, and the marriage and military service overlapped for 15 years, the non-military spouse is eligible for one year of TRICARE health insurance post-divorce.
If you’re the spouse of a military member and plan to divorce – and your marriage does not adhere to the 20/20/20 rule or the 20/20/15 rule – you would therefore need to find an alternate health insurance source.
Read Hello Divorce’s blog post Guide to Health Insurance after Divorce for more information.
Each state has its own method of granting and dividing retirement funds. If you live in the continental U.S., look here to find local assistance. You may also decide to consult a military legal assistance attorney.
If you’re a member of Hello Divorce, know that we’re here for you. Email your account coordinator with questions, or schedule a flat-fee meeting with an attorney for even more help.
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