A Different Kind of Battle: Special Considerations for Retired Military Members Under the Uniformed Services Former Spouses’ Protection Act (USFSPA)

By:

Brooke Tuttle, ESQ.

For military members and veterans, the Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal act that protects the non-military spouses in the event of a divorce. This Act specifically provides benefits for the non-military ex-spouse.

The Retirement Issue

The USFSPA deals mainly with retirement. The issue is that the servicemember’s retirement, or hypothetical retirement, is treated as current income under the USFSPA.

Provided that the Final Order in the divorce action allows the former spouse a portion of the servicemember’s retirement (and it is likely that it will under equitable distribution), the servicemember’s retirement account can and likely will be used to make spousal support, child support, and/or equitable distribution payments. The payments that come from the retirement account are to be taken out of a “fixed dollar amount or a percentage of disposable retired pay”. If the servicemember is on active duty, the amount in their retirement account that would be subject to distribution under the USFSPA could be a hypothetical number based on the amount that they should have at the time of retirement.

Since this is so lucrative for former military spouses, the USFSPA has requirements in place to protect the servicemember. One such requirement is the 10/10 spouse rule. Under the 10/10 spouse rule, the servicemember and their spouse need to have been married for at least ten years, the servicemember needed to be serving for ten years during the marriage, and that service needed to qualify to add funds to their retirement account during those ten years of service.

The 20/20/15 and 20/20/20 Spouse

There are more benefits available to the non-military spouse who had been married to the servicemember for longer than ten years.

Under the 20/20/15 spouse rule, the servicemember needed to have served for at least twenty years, the marriage had to have lasted for at least twenty years, and the servicemember needed to have been in military service for at least fifteen of those years. If that criteria has been met, the former spouse will get the benefit of the support payments and equitable distribution outlined above, as well as medical benefits for a year (unless the former spouse gets remarried) and the ability to purchase medical benefits from the Department of Defense when that year is over.

Under the 20/20/20 spouse rule, the servicemember needed to have served for at least twenty years, the marriage needed to have lasted for at least twenty years, and twenty years of service needed to have been completed while in the marriage. If those requirements have been met, the former spouse will get the support payments and equitable distribution outlined above, as well as commissary and exchange privileges, and full medical benefits until such time as the former spouse remarries. The benefits will resume, however, if that marriage ends.

Application by the Former Spouse

In order for the former spouse of a member of the military to claim spousal support, child support, equitable distribution, or any of the mentioned benefits under the USFSPA, they have to apply for it. Additionally, they have to meet even more criteria that is set out in the application, and if they do not, they have to have a good argument with strong evidence as to why they do not.

CONCLUSION

Getting a divorce or going through custody issues is hard enough without the stress and pressures that comes along with being in the military or having had served. If you are in the process of dealing with either, you need a support system that understands the unique intricacies that go into a military divorce or custody issue.

The Colwell Law Group is dedicated to providing a personal and unique approach to advocating for all of our clients, and that includes servicemembers and veterans. We want to make sure that you are allowed to exhibit the bravery, honor, and valor in defending our country, and we will, in turn, do the same when fighting for you. Contact the Colwell Law Group today to set up your free consultation and let us serve you for once.