July 13, 2012

Legal Assistance Tip: The Uniformed Services Former Spouses’ Protection Act

by Capt. Francisco Ochoa
Edwards AFB Legal Office

We are often asked to clarify the rights of a former spouse to a portion of a member’s retirement pay after divorce.

The answer is in the Uniformed Services Former Spouses’ Protection Act, which recognizes the right of state courts to distribute military retired pay to a former spouse and provides a method of enforcing these orders through the Department of Defense.

There are three general requirements for a former spouse to be entitled to a portion of a member’s military retired pay.

First, the former spouse must have been married to the member for at least 10 years during which the member performed at least 10 years of creditable military service (the “10/10 rule”).

Second, the former spouse must have been awarded a portion of a member’s military retired pay as property in the final court order granting divorce, dissolution, annulment or legal separation.

And third, the state court must have had jurisdiction over the member by reason of (1) the member’s residence in the territorial jurisdiction of the court (other than because of his military assignment), (2) the member’s domicile in the territorial jurisdiction of the court, or (3) the member’s consent to the jurisdiction of the court, as indicated by the member’s active involvement in the legal proceeding.

If all of these requirements are met, a former spouse can send DFAS a completed and signed application form (DD Form 2293), together with a certified copy of the court order, to obtain his or her portion of the member’s military retired pay. The maximum that can be paid to a former spouse under USFSPA is 50 percent of a member’s disposable military retired pay.

USFSPA also provides a method of enforcing current child support and/or arrears and current alimony awarded in the court order. The 10/10 rule and the jurisdictional requirements do not apply to enforcement of such awards, but a court order still is required. In cases where there are payments of a portion of military retired pay in addition to a garnishment for child support or alimony, the total amount payable cannot exceed 65 percent of the member’s disposable retired pay.

The right to payments under USFPSA terminates upon the death of the member or former spouse, unless the applicable court order provides that the payments terminate earlier.

For more information, contact the Base Legal Office at (661) 277-4310.

Legal assistance attorneys are available 10-11 a.m., Monday, Wednesday and Friday, and 3-4 p.m., Tuesday and Thursday. Paralegals can provide power of attorney and notary services 8 a.m.-4 p.m., Monday through Thursday, and 8 a.m.-1 p.m., Fridays.

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