Divorce in the military can be confusing because domestic situations are governed by a mix of federal statutes, state divorce laws and procedures, and military regulations. Depending on the length of the marriage, divorced spouses of service members may be entitled to benefits from the military.
The Uniformed Services Former Spouse Protection Act is a federal law that provides certain benefits to former spouses of military members. The benefits may affect receipt of retirement pay and medical care, as well as the use of exchanges and commissaries.
What the Uniformed Services Former Spouse Protection Act does
Under the Uniformed Services Former Spouse Protection Act, state courts are allowed to divide disposable military retired pay between the service member and spouse if the state court desires. Former spouses, in some circumstances, are able to receive a portion of the service member’s retired pay directly from the government. Some former spouses are entitled to care at military medical facilities and are given access to military exchanges and commissaries. Former spouses may be beneficiaries under the Survivor Benefit Plan as well. Some victims of spousal or child abuse are also eligible for benefits.
What the Uniformed Services Former Spouse Protection Act does not do
The Uniformed Services Former Spouse Protection Act does not require courts to divide military retired pay, establish a formula or award a predetermined share of military retired pay to former spouses, or place a ceiling on the percentage of disposable retired pay that may be awarded to a former spouse. Further, the law does not 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 precludes a court from treating retired pay as the property of the service member and his or her spouse unless the court has jurisdiction over the service member based upon either the member’s residence other than because of military assignment, the member’s domicile or the member’s 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 is a court order or a property settlement that has been 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 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 upon the earliest of three events: 1) the terms of the court order are satisfied; 2) death of the retired service member; or 3) death of the former spouse.
Procedure for request for direct pay
The former spouse must send the designated agent of the member’s uniformed service the following items: a signed DD Form 2293, “Application for Former Spouse Payments from Retired Pay,” and a copy of the court order and other accompanying documents that provide for payment of child support, alimony or division of property. An official of the issuing court must certify any accompanying documents within 90 days immediately preceding service.
Notification to the designated agent can be by regular mail, email, fax or certified mail.
No later than 30 days after effective service, the Defense Finance and Accounting Service shall send written notice to the affected member at the last known address. They may reject any request for direct pay that does not satisfy the statutory requirements. If the member responds to the notification, they will consider the response and will not honor the court order whenever it is shown to be defective, modified, superseded or set aside. No later than 90 days after effective service, the Defense Finance and Accounting Service shall make payment to the former spouse and inform him or her of the amount to be paid. If the court order will not be honored, an explanation shall be sent to the former spouse as to why the court order was not honored.
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. This designation can be either voluntary or court-ordered, but courts cannot order a retiree to provide former spouse coverage unless the member has previously made a spouse election for that former spouse. When divorce occurs after retirement, a former spouse’s coverage will be in the same amount as spouse coverage. In active duty divorces, the specific level of coverage should be directed by the court order. If the former spouse remarries before age 55, eligibility as a beneficiary will be lost. If that remarriage ends, the former spouse’s eligibility is restored.