Uniformed Services Former Spouses' Protection Act (USFSPA)
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Uniformed Services Former Spouses' Protection Act (USFSPA)
In 1982 Congress passed the Uniformed Services Former Spouses'
Protection Act (USFSPA) allowing state courts to treat military
disposable retired pay as divisible property in a divorce.
"Subject to the limitations of this section, a court may
treat disposable retired pay payable to a member for pay
periods beginning after [retroactive to] June 25, 1981,
either as property solely of the member or as property
of the member and his [or her] spouse in accordance
with the law of the jurisdiction of such court."(Reference)
The act itself gives the states the right to divide disposable
retired pay as marital property. It does not discuss, however,
how to divide retirement pay, or give the right or entitlement to
a division of retirement pay to the former spouse (the divorce
decree must do this). It also does not provide rules on the percentage
to award a former spouse in a divorce decree (the state laws
will do this). Lastly, the act does not specify how long a marriage
must last to divide retired pay, only how long it must last for a
federal designated agent to pay the retirement pay portion.
Given all these unknowns, it is in both the service member's
and former spouse's interest to learn as much as possible concerning
division prior to negotiations. This is true even if the marriage
is viewed as short term.
Ever since the passing of the USFSPA, this controversial topic
continues to raise emotions in numerous point papers, articles,
and discussions.
Protection Act (USFSPA) allowing state courts to treat military
disposable retired pay as divisible property in a divorce.
"Subject to the limitations of this section, a court may
treat disposable retired pay payable to a member for pay
periods beginning after [retroactive to] June 25, 1981,
either as property solely of the member or as property
of the member and his [or her] spouse in accordance
with the law of the jurisdiction of such court."(Reference)
The act itself gives the states the right to divide disposable
retired pay as marital property. It does not discuss, however,
how to divide retirement pay, or give the right or entitlement to
a division of retirement pay to the former spouse (the divorce
decree must do this). It also does not provide rules on the percentage
to award a former spouse in a divorce decree (the state laws
will do this). Lastly, the act does not specify how long a marriage
must last to divide retired pay, only how long it must last for a
federal designated agent to pay the retirement pay portion.
Given all these unknowns, it is in both the service member's
and former spouse's interest to learn as much as possible concerning
division prior to negotiations. This is true even if the marriage
is viewed as short term.
Ever since the passing of the USFSPA, this controversial topic
continues to raise emotions in numerous point papers, articles,
and discussions.
Blogs of Interest
If you're interested in the USFSPA you might ilke to read:
- Former Military Spouse Today
- Encourages educated discussions about the Uniformed Services Former Spouses' Protection Act (USFSPA) in the hopes that any future changes will be fair and equitable to both the service member and the former military spouse.
- Kids and Money Today
- Family Finance Tips: Share and discuss current financial issues impacting all families. Focused discussions concentrate on kids and money, children's early financial education, setting up Roth IRAs for minors, and preparing the family for college expenses.
Books to Understand the USFSPA
Military Divorce Tips Health Care CHCBP, Uniformed Services Former Spouses Protection Act USFSPA, Survivor Benefit Plan SBP, Retirement Benefits and Law Answers for Service Members and Former Spouses
Divorce and the Military II(A Comprehensive Guide for Service Members, Spouses and Attorneys)
Military Divorce HandbookA Practical Guide to Representing Military Personnel and Their Families
Before Changing the USFSPA...
One must consider...
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Military retired pay is not a pension and should not be treated as a "vested" divisible marital asset.
1 point
Since the marriage itself has fallen apart, it is illogical to claim the spouse played a significant role in the service member's career.
1 point
Part of the logic behind military retainer pay (retired pay) is risk of life. The soon-to-be former spouse does not have this risk and thus does not deserve a division of the pay.
1 point
The former military spouse should have restrictions in the case that the military spouse is the culprit in domestic abuse.
Currently, there are only restrictions placed on t more...1 point
How can we revise the USFSPA or military retirement pay rules to be fair to unmarried service members who do not serve 20 years?
Consider the fact that the military spouse who is more...1 point
Military spouses take care of the kids while the service member is deployed.
0 points
It is difficult for military spouses to have their own career due to military relocation.
0 points
Military spouses play a supportive role in the service member's career.
0 points
Don't forget the "prior military" spouses.
Those who left the service in the interest of thei more...0 points
The former spouse could lose CHCBP health care (as retired pay or SBP is a requirement).
To receive unlimited CHCBP, the former spouse must more...0 points
Revise USFSPA - most likely means... revise SBP
Since SBP "insures" retired pay division more...0 points
Best Link - Information for USFSPA Changes
The list of links below is to websites callilng for USFSPA changes.
You can vote for a particular link to bring it to the top of the list.
(ie: vote for the site you think is the best)
USFSPA LIBERATION SUPPORT GROUP
calls "for a renewed fight to restore equity more...1 point
The American Retirees Association
dealing with the impact of the (USFSPA) on uniform more...1 point
WISE - Women In Search of Equity for Military In Divorce
assists military members in understanding the rami more...0 points
Featured Lenses
Marriage Jokes
While the USFSPA is not a laughing matter, good jokes are ~enjoy
Joke 1
A service member drove his brand new Corvette out of the dealership. Taking off down the road, he floored it to 80 mph, enjoying
the wind blowing through his hair.
"Amazing," he thought as he flew down I-75, pushing the pedal even more. Looking in his rear view mirror, he saw the highway patrol behind him, blue lights flashing and siren blaring. He floored it to 100 mph, then 110, then 120. Suddenly he thought, "What am I doing? and pulled over to await the Trooper's arrival.
Pulling in behind him, the Trooper walked up to the Corvette, looked at his watch and said, "Sir, my shift ends in 30 minutes. If you can give me a reason for speeding that I've never heard before, I'll let you go."
The service member paused and then he said, "Years ago, my wife ran off with a State Trooper. I thought you were bringing her back."
"Have a good day, Sir," replied the Trooper.
A service member drove his brand new Corvette out of the dealership. Taking off down the road, he floored it to 80 mph, enjoying
the wind blowing through his hair.
"Amazing," he thought as he flew down I-75, pushing the pedal even more. Looking in his rear view mirror, he saw the highway patrol behind him, blue lights flashing and siren blaring. He floored it to 100 mph, then 110, then 120. Suddenly he thought, "What am I doing? and pulled over to await the Trooper's arrival.
Pulling in behind him, the Trooper walked up to the Corvette, looked at his watch and said, "Sir, my shift ends in 30 minutes. If you can give me a reason for speeding that I've never heard before, I'll let you go."
The service member paused and then he said, "Years ago, my wife ran off with a State Trooper. I thought you were bringing her back."
"Have a good day, Sir," replied the Trooper.
USFSPA Guestbook
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A Disabled Navy Vet
Jan 23, 2012 @ 1:26 am | delete
- Approx 3500 Oklahoma Guard will return from Afghanistan and will come home to find that the other spouse was not faithful and 3% will either have a new child or will within six months. They will most likely divorce. If the service member gets to at least 20 years of service then he/she will have to pay a life time of payments (USFSPA) to the unfaithful spouse because he/she will claim that they helped build the service members retirement fund and are entitled to it for various reasons.
Military retainer pay also called ?retirement? is not a pension and has many obligations attached such as: Recall to Active Duty, Service Members are subject to the Uniform Code Of Military Justice, Employment Restrictions, Citizenship, Avoidance of Criminal Convictions or Incarceration. A veteran can be striped of retainer pay for any of these violations. A Former spouse can violate any of these obligations and still receive a pay award, Even if they are in PRISON for spousal or child abuse (Murder). So who is truly seeking preferential treatment? Should not the former spouse be held to the same attachments?
Veterans just want to be treated fairly like everyone else.
Please look at the USFSPA (1981) it needs to be Repealed/Rewritten. Vets are the ONLY group of federal (or state) employees who are REQUIRED to pay ex-spouses for their entire life when they divorce. This is NOT fair, ex-spouses can and do remarry multiple times and VETS still have to pay based on current federal/state law.
1. Sometimes ex-spouses collecting 2-3 retirement checks from service members. This is NOT a MEN'S Issue it is a Retired Vets issue 26% of those leaving the Military are now women.
2. PLEASE LOOK at this... NOT ONLY are military Ex-Spouses getting retirement benefits they are taking FEDERAL DISABILITY payments by having judges declare it DISCERNARY INCOME or IDEMNIFIYING any agreements (trickery) then awarding 50% of that also.
3. PLEASE HELP YOUR VETS... We are the ones who have been INJURED in the service of our country only to become ATM machines to our ex-spouses.
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DisabledVet
Feb 6, 2011 @ 12:54 pm | delete
- I have personally seen some of our Vets get the short end of the stick here in the Oklahoma Court System. It goes something like this. G.I Jane has been in the military 17 years, and she has been married for 8 years, she gets deployed for six months and while on deployment gets seriously hurt when an IED went off and maimed her. She returns home from being overseas and finds out that her non-military spouse has taken all the household effects, stopped paying all the bills and moved in with his girlfriend who is now with child. The bank accounts are emptied and the credit cards are max'ed out, the checking account has been emptied and bad checks have been written all over the base and letters of indebtness have been written to her commanding officer, which by military regulations she is responsible to pay. SHE IS NOW BEING THREATENED WITH MILITARY COURT ACTION. (She has to too stop the military legal actions taken against her.) She calls relatives and friends, they loan her the money to pay back enough on the checks that bounced all over base on what her ex-husband has spent on his new girlfriend.
After talking with her non-military spouse she decides that there can be no getting back together. She obtains a lawyer and files divorce paperwork only to find out he is going to fight her tooth and nail and he claims that his lawyer knows every loophole in the USFSPA. She is made to pay off all bills, and including credit card bills that have both their names on them. This is so she can keep her government secret security clearance.
After all the court actions the final divorce paperwork is completed after +10 years of marriage and she is told by her lawyer that the judge has ordered that she will have to start paying immediately 50% of her base pay at 20 years in the military and when she transfers to the reserves she has to pay 50% of her retainer pay for life. Plus she will Also she will have to give 50% of her disability payments to him due to the injuries she received while on active duty. (Remember the IED that exploded and maimed her), She is beyond words when her ex-non-military husband and his new wife are laughing and joking about the extra spending money they will have for the rest of her life (military vets.)
This is a very short and too the point of what happens to our Vets here in Oklahoma Court System, does this sound right to you?
Your VETS have been fighting to have FAIR laws for our Military Vets. BUT family law lawyers who are licensed to practice in Oklahoma and just happen to be Oklahoma State Senators and Represenitive have been blocking this for years because the military is a cash cow for them. They know that the divorce rate would go WAY DOWN if bills like HB 1053 where passed in 2009/2010. (THIS WAS HEARD OUT OF THERE OWN MOUTHS.)
The U.S. Constitution clearly states, that all laws must be dealt with in a uniform manner and that rulings based on our laws, must be uniform and consistent. It is very clear, the State Courts of our great nation are not treating this law in a uniform or consistent manner. There are outrageous tragedies created by various State Court rulings affecting our fellow brother and sister veterans. Rank, gender, race, time of rank while in service, ability or disability are to have no regard in divorce court rulings. There is today total disparity across the board; this law is unfair.
The issue described above is clear ? the USFSPA is not only unjust, it is unfair and unconstitutional and needs to be repealed.
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William Gill
Jan 29, 2011 @ 11:26 pm | delete
- Around 1981 this situation came to light in a U.S. Supreme Court decision called McCarty v McCarty. An ex-civilian spouse was trying to get part of her former husband's retirement pay. The high court ruled that it was not "retirement pay," but rather "retainer," used to keep retired military personnel on call in event of a national emergency.
Unfortunately, Congresswoman Patricia Schroeder got fellow lawmakers to "back date" the court decision, so the Supreme Court ruling did not apply. She and her colleagues came up with the Uniform Services Former Spouse Protection Act.
This act simply allows an ex-civilian spouse to be paid from a retired military member's retainer pay in perpetuity, which can be in the hundreds or even thousands of dollars every month. Don't confuse this with civilian retirement. Unlike civilians, retired military members are subject to compliance with the Uniform Code of Military Justice and most of all, subject to recall to active duty. Civilians are not!
While reading this you might say: "Hey, troublemaker, I'm happily married and have no worry about divorce." You may be happy now, but is your wife really happy? Remember, it takes two to marry, but only one to divorce. So you could be happily married to that wonderful civilian lady, return from the war, only to find out that she's sick and tired of the military and she's divorcing you. Then that ex-wife can remarry and now you're paying her AND the new husband, who are having all that money deposited into a joint checking/savings account.
Now, let's assume your ex-wife dies, at which point you're supposed to be informed so USFSPA payments can stop. So who's going to inform you of her death? Will Defense Finance and Accounting Service do this? You better think again, because in most cases, they won't! If you honestly think the above is really bad, what about you guys married to foreign nationals? Suppose that wife doesn't like living in the United States, divorces you, wins USFSPA payments, returns to her foreign country of origin, where she receives the payments, then she "donates" those payments to causes which can overthrow the United States. Remember, once she receives that money, it's hers to do with, as she desires. In effect, you could be supporting the very enemy you are fighting!
Why, you may ask, did anyone ever join the military, if this dastardly act existed? The problem was, this act did not exist when may joined the military. The rules were changed in "mid-stream."
The question might be asked, could this act be a financial "incentive" to seek a divorce? If the legislation did not exist, would there be fewer military divorces? Moreover, USFSPA, combined with alimony and child support can leave you penniless.
Take a look at over 10,000 horror stories of troops who have found out the hard way, at REFORM/REPEAL UNIFORMED SERVICES FORMER SPOUSES' PROTECTION ACT at http://www.petitiononline.com/mod_perl/signed.cgi?USFSPA. Do you still doubt the existence or the financial horror of the USFSPA?
The best to do is to tackle USFSPA with the lesser of two evils - that being the court system, or more precisely, the USFSPA lawsuit at http://usfspa-lawsuit.info/. Also, spread the word to married fellow veterans, all of which are potential USFSPA victims.
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Frank USN retired
Oct 1, 2010 @ 4:48 pm | delete
- You have attorneys making a profit from military divorces due to the steady stream of income provided by the government. Some attorneys have worked contingency fees based on how much they can get a judge to award. This is highly unethical at the national and state level.One only has to look at court dockets involving military retired/retainer pay for the last 30 years to realize courts are out of control in abusing a draconian law to begin with. Oklahoma HB 1053 was crafted and has gained national support to level the playing field and eliminate the "automatic, lifetime, monetary, INCENTIVE" to divorce. As I mentioned earlier, one only has to examine the numerous court cases nationwide that have been ruled in favor of the former spouse to understand the litigation that attorneys count on to make a lucrative payout. If there is no incentive, there is no payout. HB 1053 brings in line with other federal enities that terminate payments to remarried former spouses I.E. CIA, FSA and Social Security. Even Oklahoma judges,legislators and state employees enjoy the privledge to terminate payments to REMARRIED former spouse through Oklahoma Public Employee Retirement System. Why the double standard? HB 1053 also protects VA Disability from being considered a marital asset by state courts which is consistant with Federal law. No one should have to support an ex spouse for LIFE. No one should be profiting off the injuries of a disabled veteran. Veterans must continue obligations post active duty to the government to recieve retainer pay. The former spouse has no obligations to the government to recieve a "LIFETIME PAYOUT". Again, a double standard exists against americas warriors. HB 1053 is a fair and equitable solution for both parties.
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DISABLED VET
Jan 9, 2011 @ 11:42 pm | delete
- Here's what I find unfair about the USFSPA:
· Length of Marriage. Most service members believe one must be married for at least 10 years before their spouse can receive a portion of their pay after divorce. This is not true. Under the provisions of the Act, a divorce court can award a division of retired pay even after one day of marriage. The "10 year rule" only applies to the Defense Accounting Office making direct payments to the ex-spouse. A military member must serve honorably every day for a minimum of 20 years to qualify for retirement pay. A military spouse can qualify after only one day.
· Divorce-Court Fairness. The Act assumes that divorce court judges will divide retired pay in a fair and equitable manner. Remember, one of the reasons for the act was to reward ex-spouses who had sacrificed to support the military member's career. Unfortunately, along came "No-Fault" divorce courts, which are used now in almost every state. The "No-Fault" courts divide property without regard to the specific circumstances of the marriage or wrongdoing at the time of divorce. There are thousands of service members forced to give up 1/2 of their retired pay to ex-spouses who actually did all they could to damage the service member's career. These facts are simply irrelevant to "No-Fault" divorce courts.
· Remarriage. Under the Act, payment of devised retirement pay continues for the life of the service member, or until the death of the ex-spouse. It does not stop upon remarriage. There are several cases of people marrying and divorcing numerous military members, then applying for -- and receiving -- retirement pay from each of them.
· Spouse Employability. The Act was written during a time when military spouses were discouraged from having their own career. This is no longer the case. All of the services have regulations severely prohibiting the discouragement of spouse careers, and there are now several official programs to assist military spouses with employment, and even give them preference over other civilians for government jobs.
· Recall. A military retiree is subject to recall to active duty and is -- at all times --subject to the provisions of the Uniform Code of Military Justice, as a condition to receiving retirement pay. The ex-spouse is subject to neither of these.
· Statue of Limitations. There is no statute of limitations, limiting how long ex-spouses have before they can go back to divorce court and demand a portion of the service member's retired pay. Several times, military retirees have found themselves drug back into family court by ex-spouses they haven't seen or heard from in dozens of years, then forced to relinquish a portion of their retired pay. Many times these ex-spouses have been remarried several times!
· Measure of Service. Even in those cases where a marriage does last 20 years (the entire career), it is blatantly unfair to the veteran to state that 20 years of household service is "50-50" equal to 20 years of arduous military service. The service member has been subject to military orders, discipline, dismal sleeping/eating conditions, enemy fire, chemicals, drugs, and a dozen other hardships that only a military member is asked (nay, ordered) to endure.
EXAMPLE: If a retired military member commits a felony, or assumes citizenship in a nation other than the USA, his/her right to retired pay is extinguished.
A former spouse may live where she/he chooses, commit crimes at will and still retain her/his eligibility to receive a share of military retired pay.
A retired military member's obligations to the federal government, and (under the USFSPA) to a former spouse, persist for life. The "services" rendered by the spouse--both to the military member and to the military service--terminate at divorce. Under the USFSPA the former spouse continues to receive payments for services not rendered.
Military veterans and retirees have no wish to see ex-spouses turned out penniless into the streets after a long marriage.
However, the USFSPA has shown that it is not the solution. The proper solution would be for divorce courts to award appropriate amounts of alimony and child support, in those cases where it is specifically warranted.
Not a blatant theft of a military retiree's retainer pay.
This year, Congress will consider H.R. 72. While this resolution falls far short of needed changes to the USFSPA, it's a step in the right direction. Among other minor changes, H.R. 72 stops payment of devised retired pay upon remarriage of the ex-spouse, and enforces a three-year statue of limitations on the time an ex-spouse may take the military member back to court to request a division of retirement pay. I encourage you to write, call, or email your congressman in support of H.R. 72, and in support of future initiatives to restore fairness to the military divorce system.
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Copyright: 2010
Author: Tracy Foote
ISBN-10: 0981473725
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