Many issues arise when a service member and his or her spouse decide to get a divorce. The military spouse's continuing eligibility for commissary, exchange and health care benefits, as well as his or her eligibility for a portion of the servicemember's military retired pay are a large concern. The Uniformed Services Former Spouse Protection Act (USFSPA) addresses these concerns.
The USFSPA does not automatically give a former spouse any of the member's retired pay. Rather, the law permits a state to treat military disposable retired pay as marital property and therefore divide it in a divorce action. Disposable military retired pay is a service member's monthly retired pay minus qualified deductions. USFSPA allows the local court to treat military retired pay just as it would treat a civilian pension plan. Retired pay may be divided for property settlement purposes. Retired pay may also be garnished to satisfy child support and alimony obligations. Whether military retired pay will be treated as marital property and how the servicemember's military retired pay will be divided between the two parties upon divorce is decided according to state law. Maryland, Virginia and District of Columbia courts have treated a service member's military retired pay as a marital asset which can be divided in a divorce action.
Under the USFSPA, a former spouse, like a current spouse, can be designated as a Survivor Benefit Plan beneficiary. Survivor Benefit Plan (SBP) is an annuity that allows retired service members to provide continued income to a named beneficiary in the event of the retiree's death. A retiring servicemember will be enrolled in the SBP unless he or she declines to participate. If divorce occurs after retirement and the servicemember had initially elected to participate when retiring, the divorce terminates the initial beneficiary designation in favor of the "spouse." However, coverage may be continued in favor of a "former spouse" either voluntarily, to honor an agreement between the parties, or to comply with a court order. The former spouse however, must elect "former spouse coverage" from the appropriate military finance center within one year of the date of the final divorce decree.
The USFSPA also permits former spouses to continue receiving commissary, exchange, and health care benefits after a divorce in certain cases. In order to qualify for continued benefits a former spouse must show that the service member served at least 20 years of creditable service, that the marriage lasted at least 20 years and that the period of the marriage overlapped the period of service by at least 20 years. A former spouse who meets these requirements is known as a 20/20/20 former spouse and is entitled to full commissary, exchange and health care benefits. These benefits include TRICARE and inpatient and out-patient care at a military treatment facility. Former spouses who do not meet these requirements lose their commissary and exchange privileges once the divorce is final.
In cases where the servicemember served 20 years of creditable service, the marriage lasted 20 years, but the period of the marriage overlapped the period of service by only 15 years the former spouse is entitled to full military medical benefits only for a transitional period of one year following the divorce. After this year of coverage, the spouse may purchase a DOD-negotiated conversion health policy. Full coverage also requires that the former spouse does not remarry nor enroll in an employer-sponsored health insurance plan. Former spouses who are neither 20/20/20 nor 20/20/15 former spouses are not entitled to any military health benefits after a divorce. But they are eligible for the DOD Continued Health Care Benefit Program, a premium based temporary health care coverage program for 36 months of coverage until alternative coverage can be obtained, if they enroll within 60 days of losing full military health care benefits.
If you have questions regarding USFSPA, call your local military legal office and schedule an appointment with an attorney. You can find links to military legal assistance offices at the Military.com Free Legal Assistance web page.
A former spouse is eligible to receive direct payments from a retiree's retired pay if the court order satisfies the requirements and conditions specified for such payment as set forth in this chapter. In the case of a division of property, the court order specifically must provide that payment is to be made from disposable retired pay. To establish eligibility for a court-ordered division of retired pay as property, the former spouse must have been married to the member for 10 years or more during which time the member performed 10 years creditable service. Court-ordered payments for child support and/or alimony do not require a specified length of marriage.
On June 26, 1981, the U.S. Supreme Court ruled that military retired pay could not be treated as community property in divorce cases. In response, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA) which decreed that state courts could treat military retired pay as property in divorce cases if they so chose.