Recent comments to my Money and Divorce post highlight the confusion about the Uniformed Services Former Spouses' Protection Act (USFSPA). While I addressed these topics last fall in Fact or Fiction: Divison of Retirement Pay, it seems that we're due for a review. I'll post the comments, both online and via email, that I have received, then respond with the facts. (I apologize for the he/she references. Even though the military is now nearly 15% female, I almost never get a comment about divorce settlements from a female service member or a male former spouse.)
Comment:Does this apply to the over 10 years together?
Facts:There is only one thing that is affected by whether the marriage is more or less than 10 years: If the marriage lasted more than 10 years, the Defense Finance and Accounting Service (DFAS) is permitted to make the payment directly to the former spouse, upon the written and approved request of the former spouse.
Comment:Don't they have formulas they use?
Facts:With regard to the division of property, including military retirement pay, there are no formulas written into law, anywhere. Some states may have formulas that are used as guidelines, but even these guidelines are very flexible. Many people will make up their own formulas, such as 1/2 of the percentage of time that the marriage overlapped with military service. Other ways to calculate a division might include the rank and time in service at the time of the divorce. A really good calculation would factor in all the other variables, such as the other retirement accounts the couple might have, Survivor Benefit Plan benefits or whether the service member might receive disability compensation from the VA.The reason there is no formula is because retirement pay is only one of the many assets of most divorcing couples, and decisions about it have to be made while considering all the other factors at play. Most families have debt, savings, vehicles, house(s), investments, and other retirement accounts. A property settlement agreement should address all these issues together, taking into account the specific situation of the divorcing couple.
Comment:Why should she get my retirement pay for my entire life? It should stop after a certain number of years, or if she remarries.
Facts:The division of marital assets is a permanent settlement, regardless of the nature of the asset being divided. When a house is designated to one party in a divorce, there aren't stipulations. The house remains the property of that party, regardless of remarriage, or the passage of time, or whatever else changes. The same is true for cars, savings, investments, and all retirement assets, both civilian and military.
Comment:Why does the government get to tell me what to do with my retirement?
Facts:I'm going to use part of a comment from a reader, because it beautifully clear and concise.
"The division of military retirement, whether currently eligible or possibly eligible in the future, is handled by the states in accordance with state law having jurisdiction. The ONLY role of the Federal government is to pay an ex by allotment if married over 10 years."
Comment:Minimum is 10 years she has to be marred to you. Don't let her lawyer bully you into thinking she is entitled.
Facts:Military retirement pay MAY be divided after any length of marriage. Obviously, most reasonable people wouldn't think it right to divide retirement pay after a short marriage. In my opinion, there should be some sensible calculation that considers the length of marriage, the length of service, the time that the marriage and the service overlaps, and removes post-divorce promotions and longevity raises from the equation. However, every situation is unique and there is no one-size-fits-all solution.
I will continue to address this issue in upcoming posts. In the meantime, two great references are:
Defense Finance and Accounting Service (DFAS) Uniformed Services Former Spouses Protection Act (USFSPA) Legal Overview