Your Guide to the Uniformed Services Former Spouse Protection Act

Even though there is technically no such thing as a ‘military divorce,’ military spouses often have a tougher time of things when they file for divorce. This is especially true when military families are involved. 

So-called military divorces involve a wide variety of considerations, including divestment of retirement benefits, health care benefits, and more. It is also important to remember that state courts can divide military pensions as marital property.

The Uniformed Services Former Spouse Protection Act (USFSPA) is a specific law affecting military spouses. If you are a military spouse and want to file for divorce, you must understand how this law works to protect your rights. 

What Is the USFSPA?

The U.S. enacted the USFSPA federal law in 1982. This law allows state courts to divide military retirement pay during divorce proceedings. The USFSPA allows a former military spouse to be awarded a portion of a service member’s military retirement funds, but only if certain conditions are met. 

Retirement Funds

When settling your divorce, the USFSPA law does not automatically give you the right to a portion of your spouse’s retirement pay. The USFSPA takes its cues from state laws and handles military retired pay as marriage property. 

This means the money must be divided according to jurisdictional property division laws. Depending on your state, this marital property (retired pay) may be divided according to the equitable distribution method. 

Features of the USFSPA in 2024

Federal law does not state that ex-military spouses have the right to receive military retired pay. This is why the USFSPA law grants courts the authority to divide this pay. However, federal law has a say in the pension benefits paid to an ex-spouse. This limit is set at 50% of disposable retired pay.

The amount payable is calculated using various factors, including the service member’s rank and years of service. It is also important to remember that pensions are never distributed before the service member retires. 

Also, while military retired pay is seen as marital property and, as such, capped at 50% when divided, a retired service member may have to pay their ex-spouse up to 65% if child support or alimony is included. 

What Is the 10/10 Rule?

You can receive a payout from your retired service member spouse in two ways. You will receive it from the Defense Finance Accounting Service (DFAS) or your former spouse. 

The government agency (DFAS) will pay you directly if you have been married for at least 10 years, and 10 ten years overlap with a minimum of 10 years of military service. This is also known as the 10/10 rule. 

If the 10/10 rule applies in your divorce settlement, government accountants will take the awarded amount from your spouse’s retirement benefit and deliver it to you. In some cases, the benefit will go to the retired service member, who will then have to distribute it to you according to your divorce court order.

The 10/10 rule affects how retired pay is divided; it does not affect whether you are eligible for the payment in the first place. There are also no other requirements, such as state spouses being married for a minimum period, to become eligible for a portion of military retired pay. 

Healthcare Benefits

When you get divorced from a military service member, there are also healthcare benefits to consider. For instance, the 20/20/20 rule entitles you to full TRICARE health benefits if you were married for at least 20 years and your ex-spouse served for at least 20 years. 

There must also be an overlap of at least 20 years between the marriage and the military service. If the marriage and military service overlap was between 15 and 20 years, you are entitled to one year of transitional TRICARE benefits after the divorce. This is according to the 20/20/15 rule.

If the 20/20/15 rule applies to your divorce and your eligibility for TRICARE expires after a year, you may become eligible for temporary health coverage under the CHCBP (Continued Health Care Benefit Program). 

There is also the Survivor Benefit Plan (SBT), which ensures a portion of a service member’s retired pay continues to pay out to their ex-spouse after their death. 

What to Consider in 2024 

The core of the USFSPA law remains the same in 2024, but some updates may apply to your divorce. For instance, in 2017, the NDAA (National Defense Authorization Act) changed how military retired pay is calculated. 

The retired pay division could include future promotions and pay increases. However, the 2017 amendment ensured that retired pay is now only divided based on rank and years of service at the time of the divorce, not at retirement.