Former Spouse <br>Protection Act

Former Spouse Protection Act


Preventive Law Series
Prepared by Legal Assistance Office
Naval Legal Service Office Northwest
prepared 04/08/98

The Uniformed Services Former Spouses' Protection Act, enacted by Congress in September of 1982 (and subsequently amended), offers protections and entitlements to former spouses of military members. The main features of the Act are as follows:

• Allows states to treat "disposable" retired/retainer pay (hereinafter defined as "retired" pay) as marital property or community property available for distribution in a property settlement (as well as alimony and child support in appropriate cases). All 50 states permit some type of division.

• Allows former spouses with ten years of marriage overlapping ten years of creditable military service to receive their share of military retired pay directly from military Finance centers.

• Allows some former spouses to continue to receive military benefits (commissary, exchange and health care).

• Allows state court orders to designate former spouses as Survivor Benefit Plan beneficiaries.

Division of Disposable Retired Pay: Only "disposable retired pay" as defined in the Act is divisible. "Disability retired pay" is not considered part of disposable retired pay and cannot be divided, although it can be considered when structuring an equitable distribution of other assets. The award of disposable retired pay can be given either as a percentage or a fixed dollar amount. Percentage awards are entitled to yearly cost-of-living increase; fixed dollar awards are not. The basic formula to divide disposable retired pay as community property is

1/2 X Number of months married during creditable military service X 100% = Spouse's Total number of months of creditable military service share

If the member is still on active duty at the time the dissolution is final, the finance center will calculate and insert the months of creditable service.

Direct Payment of Disposable Retired Pay to Spouse: While a court may award a portion of retired pay to a spouse or former spouse married for a shorter period, enforcement of a court order under the Act applies only when:

• The parties were married to each other for at least ten years during which the member performed at least ten years of creditable military service. (This does not apply to direct payment of retired pay for child support or alimony.)

• The court had jurisdiction over the member by reason of (1) his residence in the territorial jurisdiction of the court (other than because of his military assignment; (2) his domicile in the territorial jurisdiction of the court; or (3) his consent to the Jurisdiction of the court.

• The rights of the service member under the Soldiers' and Sailors' Civil Relief Act were observed during the court proceeding.

When applying for a direct payment, the requesting party must include a court certified copy of the Final decree of dissolution from which no appeal has or may be taken. Only the spouse, former spouse, or his or her attorney may make application under the Act. The right to the continued division of pay terminated upon the death of either party unless an earlier termination date is provided for in the court order.

DD Form 2293, "Application For Former Spouse Payments From Retired Pay", sets out all of the requirements for obtaining payments and can be obtained from the Director, Defense Finance and Accounting Service (DFAS), Cleveland Center (Code L), P.O. Box 99800, Cleveland OH 44199-8002.

Post Dissolution Military Benefits: Federal Law designates military benefits. Agreements between the parties or a state court can not alter the following statutory scheme:

• An unmarried 20/20/20 spouse (20 years of marriage overlap with 20 years of creditable military service): Entitled to commissary, exchange, and full military health care coverage (if not enrolled in an employer-sponsored health insurance plan).

• An unmarried 20/20/15 spouse (20 years of marriage and 20 years of creditable service with 15 years overlapping): If divorce was finalized before I April 1985, the full military health care coverage is available (if not enrolled in an employer-sponsored health insurance plan; if after I April 1985, then only one year full military health coverage with the opportunity to enroll in a Department of Defense "Continued Health Care Benefit Program" for a twenty-four month period with premiums paid by the former spouse.

Survivors' Benefit Plan (SBP): The SBP guarantees a continued portion of retired pay after the death of the service member. This is basically an insurance policy; premiums are due each month the service member is alive and collects retired pay. A former spouse may be. voluntarily designated a SBP beneficiary in the same way as a spouse. Additionally, a court may require a service member to designate a former spouse as the beneficiary. In the event the service member does not do so, the former spouse may request that the election be "deemed" to have been made. This deemed election is not automatic and must be made within one year after the date of the court order. When a timely request is made, the member's service record will be flagged and upon retirement, the former spouse will be designated as the SBP beneficiary. The court ordered designation would prohibit a service member from naming a subsequent spouse as the beneficiary. Most often the former spouse is required to pay for these premiums.

Questions regarding the Uniformed Services' Former Spouses' Protection Act should be referred to a Legal Assistance attorney at your local Legal Service Office.

(NOTE from BJ 'n Cindy: This was designed by and for the US Naval Service, but the information should be similar for all services. The information while deemed reliable should not be the substitute for consultation with an attorney (either civilian or military), or any other federal or state agency which may be chartered with providing assistance.)