Before 1982, state courts disagreed on whether they were allowed to divide military retired pay in divorce cases. On September 8, 1982, Congress enacted the Uniformed Services Former Spouses Protection Act (USFSPA). This law allows state courts to treat military retired pay as marital property in divorce cases. It also sets procedures allowing a former spouse to receive all or a portion of the court settlement as a direct payment from the Defense Finance and Accounting Service Center (DFAS).
Military Retired Pay and Divorce
The law does not direct state courts to divide retired pay; rather, it permits them to. Only disposable pay may be divided. Disposable retired pay is the gross monthly pay entitlement, less authorized deductions. Up to half of disposable retired pay can be paid to a former spouse. The amount goes up to 65 percent if there are additional garnishments for alimony or child support.
Dividing Military Retired Pay
The military law doesn't have a formula for calculating the appropriate division of retired pay. The amount of a former spouse's award is entirely a matter of state law. A commonly used formula method expresses the award as a marital fraction:
- The numerator is the length of the parties' marriage while the member was in active service
- The denominator is the total length of time that the member was in active service
- The former spouse's award is then calculated by multiplying the marital fraction by 1/2
Let's try an example: Length of marriage is 240 months. The member was in the military for 120 of those months. The member retired with 300 months (25 years) of military service. The award to the former spouse is calculated as follows: 120 (time in military during the marriage) divided by 300 (total time in the military) equals 40 percent. The marital fraction (40 percent) is then multiplied by 1/2 to determine the former spouse's award; which, in this example is 20 percent of the member's disposable military retired pay.
Enforcing an Award of Military Retired Pay
In order for the award to be enforceable, it must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay. If a fixed dollar amount award is used, the former spouse would not be entitled to any of the member's retired pay cost of living adjustments (COLAs). The more common method of expressing the former spouse's award is as a percentage of the member's disposable retired pay. This has the benefit to the former spouse of increasing the amount of the former spouse's award over time due to periodic retired pay COLAs.
Direct Pay to a Former Spouse
Once a court has awarded a former spouse a portion of retired pay as property, the former spouse may apply to DFAS to receive that pay as a direct payment. To qualify for a direct payment, the former spouse must have been married to the member during at least 10 years of the member's active duty service in the military.
DFAS must begin direct payment to the former spouse within 90 days of receipt of a valid court order. If a service member is not retired at the time of the court order, payments must begin no later than 90 days after the service member retires. The law does not authorize a court to order a member to apply for retirement or to retire at a specified time in order to start payment. Remarriage of a former spouse does not stop the direct payment of retired pay as property unless the court so orders.
Questions for Your Attorney
- I am not eligible for direct pay and my ex-spouse is always late making the payments, what can I do?
- What do I do if my divorce judgment does not have the right language to authorize DFAS to give me my portion?
- Will my payments continue if my ex-spouse dies?