Retirement Services Office (RSO)
If you have a question concerning the Uniformed Services Former Spouse's Protection Act (USFSPA) and you can not find the answer in the Information Paper on the USFSPA section of this web site, or within this Frequently Asked Questions section, go to the DFAS-CL website on USFSPA at http://www.dfas.mil/dfas/garnishment/usfspa/legal.html or contact your Retirement Services Office (RSO).
DIVISION OF RETIRED PAY
What law addresses division of retired pay, and where can I get a copy?
The division of retired pay in accordance with a valid court order is covered in Title 10, United States Code, Section 1408. Get a copy at your local library or on-line.
I was the spouse of a military person during 17 years of his active service. Where do I sign up for my entitlement to 50 percent of his retired pay?
While state courts can treat retired pay as marital property, the Uniformed Services Former Spouses' Protection Act (USFSPA) does not confer automatic entitlement to any former spouse, regardless of length of marriage, amount of overlap of service and marriage, career contribution, steadfast support, etc.
My attorney tells me that only "disposable pay" can be divided as marital property. What does that mean?
Disposable pay is the amount of gross retired pay remaining after the following deductions are made:
1) garnishments; 2) court martial fines/costs; 3) waivers due to civil service and VA disability compensation receipt; 4) SBP premiums; 5) taxes (if before 3 Feb 1991). An example of an item not counted in determining disposable pay is an allotment into a savings account.
I hear "10 years of marriage" mentioned all the time in relation to division of retired pay. What's the significance?
The answer is in this illustration. A couple may have been married throughout a full military career, yet the USFSPA does not compel a state court to award a division of pay to a former spouse. However, when the court does order a division, "10 years" only comes into play because there must have been 10 years of marriage that overlapped with 10 years of creditable military service in order for a former spouse to receive direct payments from DFAS-Cleveland Center (DFAS-CL). Without it, the government will not be the payer.
Do you mean that my former spouse could have been married to me for only 8 of my 20 active duty years and still get a division of my retired pay, even if not paid from the government? Yes. A state court can do whatever they deem appropriate when settling marital property (retired pay has been considered marital property since 1982).
Where can I get a copy of the law that spells out the formula for retired pay division entitlement based on "X" amount of years of marriage and service overlap?
There is no "official" document saying, for example, that 10 years of a 20 year career entitles one to 50 percent of retired pay.
A friend of mine told me that he was ordered by the court to give up all his retired pay to his former spouse. Can that be true? Yes. Any or all of your retired pay can be awarded to a former spouse. However, a limit ("cap") is imposed by federal law, which restricts DFAS-CL in the amount of disposable pay they can directly pay to a former spouse.
I read that a former spouse cannot receive from DFAS-CL directly more than 50 percent of a retiree's disposable retired pay. Is there any case where that is not true?
Yes. If child support is an ordered garnishment from military retired pay, the "cap" is 65 percent of disposable pay.
Will my former spouse have to pay his own taxes on the amount he receives as a division of my retired pay?
Yes - if the divorce occurred after 3 Feb 1991. Since that date, each party is responsible for their own taxable income, and each receives a separate 1099R.
I am a former spouse who was married to a military member for 12 years. My divorce decree ordered that I should retain my military ID card. Why am I being denied a card?
A state court does not have the authority to confer entitlement to a military ID card. Federal law defines minimum eligibility requirements, one of which is completion of a minimum of 20 years of marriage to a military member.
I know about the so-called "20/20/20" and "20/20/15" minimum requirements pertaining to a former spouse getting an ID card (i.e., 20 years service/20 years marriage/15-20 years overlap of the two). I meet the 20-year marriage and 15-year overlap requirements, but my ex-spouse just retired for disability after completing only 18 years active service. Can I still get an ID card since it was not my fault that 20 years of service was not completed?
No. We know of no exceptions being made regarding minimum ID card eligibility requirements. Completing 20 years creditable service is a must. A retirement with less than 20 creditable years service (e.g., disability, or Temporary Early Retirement Authority, TERA) doesn't meet the 20 years service.
SURVIVOR BENEFIT PLAN (SBP)
When I retired in 1990, my spouse and I jointly decided we didn't want SBP, so I declined participation. Now that we're divorcing, she says she's changed her mind and wants the coverage. Do I have to enroll her now?
No. You cannot enroll her now, voluntarily or by court order. Since you initially declined spouse coverage, the only time you can voluntarily enter the program is during a future Open Season. There have only been 5 Open Enrollment Seasons Since SBP was enacted in 1972.
My husband is retired and I am his spouse beneficiary in SBP. We are getting divorced, and the state court will order him to continue to cover me in SBP. If I send DFAS-CL a copy of the divorce decree, will I remain covered automatically?
No. When DFAS-CL is informed that the retiree is divorced (i.e., has no spouse), they simply stop his spouse coverage/premiums. Because SBP elections are "by category," when there is no eligible spouse, spouse coverage is suspended. You must forward a completed DD Form 2656-10 (SBP/RCSBP Request for Deemed Election) with the divorce decree and if separate, the court order awarding SBP to DFAS-CL within one year of the first court order awarding former spouse SBP.
I am retired and have spouse SBP coverage. I recently divorced and was ordered to continue covering Susie in SBP. I sent the decree to DFAS-CL just to keep my records updated, but I did not ask them to take Susie off my coverage -- yet DFAS-CL suspended my spouse coverage. What's going on?
DFAS-CL's action was appropriate. Since SBP elections are made by category, not individual, when DFAS-CL learned you did not have a spouse, they properly suspended your "spouse" coverage. On date of divorce, Susie is no longer your spouse, and cannot be covered under the spouse category. To facilitate the change (assuming you are still within one year of the divorce), write to DFAS, US Military Retirement Pay, PO Box 7130, London, KY 40742-7103, and request that your SBP category be changed from "spouse" to "former spouse." The law requires a written request. Your former spouse, Susie, will then be covered, and you will be in compliance with the court order. If it's more than one year since divorce, you'll have to address the matter to the Army Board for Correction of Military Records (ABCMR) by completing and submitting a DD Form 149 (Application for Correction of Military Record Under the Provision of Title 10, US Code, Section 1552). Your Retirement Services Officer (RSO) can assist you.
I am a retiree with spouse coverage. The court has ordered me to cover my former spouse in SBP upon divorce. They've also ordered her to start paying the SBP premiums. How do I get the payment responsibility switched to her?
You don't. Federal law currently allows only the retired member to have SBP premiums deducted (tax-free) from retired pay. The state court, being a lower court, cannot legally order otherwise. You would need to explore reimbursement privately.
I know that SBP rules say that a former spouse beneficiary remains eligible as long as he/she doesn't marry before age 55. But, my divorce decree wording goes one step further and specifies that my former spouse will lose SBP eligibility if she remarries AT ANY AGE. Is that legal?
No, it is not legal. SBP runs by federal law, not state law. In reality, a state court can incorporate anything it or the party's desire into a divorce decree. However, federal law dictates the conditions of eligibility for SBP - one of which is age of remarriage. (See Title 10, U.S. Code, Chapter 73.)
I heard through the grapevine that my 50-year old former spouse, who is my court-ordered SBP beneficiary, has remarried. Since she's under age 55, how do I stop coverage for her and enroll my new spouse?
You can't "stop" former spouse coverage; you can "suspend" it; and, you can't enroll your new spouse. It's true that your former spouse's remarriage affects her eligibility, but it does not terminate your obligation to cover your former spouse - only your obligation to make payments. In other words, once you prove to DFAS-CL that your beneficiary has remarried before age 55 (i.e., provide marriage and birth certificates); your former spouse premiums will be suspended - as long as she remains ineligible by being married. However, should that remarriage end due to divorce or death, the former spouse will regain eligibility and appropriate coverage and premiums will resume. YOU are responsible to keep DFAS-CL notified of all beneficiary changes. In summary, loss of a former spouse's eligibility does not signal a new opportunity for a member to make a new election.
If my former spouse should die, what would happen to my court-ordered SBP election? Could I cover my spouse?
Your court ordered former spouse coverage would be voided by your former spouse's death. You would be free to enroll your current spouse. Provide DFAS-CL appropriate documents.
My divorce will soon be final and I'm still on active duty. The court is ordering me to participate in SBP for my former spouse when I retire. What action do I have to take now to stay out of hot water?
As an active member not yet eligible for retirement, you have no action to take until retirement. At retirement, in order to comply with the court order, you would elect former spouse coverage. If you don't, you may be in contempt of court. On the other hand, your former spouse has one year from date of divorce or court order first awarding SBP to submit a DD Form 2656-10 to request a deemed former spouse election.
I am a former spouse of an active duty member. Two months ago, we divorced and the court ordered her to enroll me in SBP when she retires. Since we don't plan to keep in touch, how can I ensure that happens?
The USFPSA gives you a tool to use to make sure you are covered in SBP in the future if it is court-ordered -- that is a "deemed election." Within one year of divorce, YOU (or your attorney) can send DFAS-CL a copy of your divorce decree along with a DD Form 2656-10 requesting a deemed election. It will be kept in suspense, awaiting your ex-spouse's future retirement and SBP election. If she fails to elect former spouse coverage, the deemed election will override that failure. You will be notified when that occurs.
Whom can I turn to for information on the USFSPA?
While your Army Retirement Services Officers (RSO) are not attorneys, they are knowledgeable on most aspects of the USFSPA, and will refer you to others who can answer any questions they cannot.
I am a former spouse whose divorce occurred more than one year ago. I never heard of being able to deem an election that was court-ordered. And, I just learned that my former spouse did not follow the court's order and is covering his current spouse. Wasn't it the government's responsibility to inform me of my rights under the USFSPA?
No. While there are certainly many people/agencies within the government who are knowledgeable on the USFSPA, the bottom line is that it is YOUR private attorney's role to properly advise you on all aspects of divorce. When hiring an attorney, we strongly recommend that you inquire as to their knowledge of and experience with USFSPA issues, to ensure that your interests are protected. The attorney can also advise you of what steps can be taken to address a contempt of court issue.
How can I conduct research on the USFSPA in order to minimize my attorney's fees?
Call your RSO (listed on this web site and in each issue of "Army Echoes") for information. If you are a member of a military service organization, ask them what assistance, if any, they can provide. Some keep a database of area attorneys who are considered to be well versed in military divorce. Avail yourself of USFSPA information on (or refer your attorney to) this web site and the DFAS web site: http://www.dfas.mil/dfas/garnishment/usfspa/legal.html.
Updated Jul 11
< back to usfspa