Under certain conditions, a state court may award a portion of one spouse's military retired pay to the other, as part of a divorce order.
Under federal law, military retired pay is a federal entitlement, not a qualified pension plan. In 1981 the United States Supreme Court ruled that state courts could not divide military retired pay as an asset of marriage. However, in 1982, Congress changed the law by passing the Uniformed Services Former Spouses’ Protection Act (USFSPA). States are now authorized to divide military retired pay under certain conditions. However, the distribution of military retired pay to former spouses is not an automatic entitlement. The amount of a former spouse’s award is based solely on state law, and certain requirements must be met. In addition, former spouses may also rely on this Act to enforce an award of alimony or child support.
Read the Law: 10 U.S.C. 1408
What can State courts do?
- State courts can divide military retired pay and distribute to a spouse or former spouse as property in the final court order.
- State courts can enforce orders through the Department of Defense.
- State courts can only divide military retired pay as outlined in the USFSPA.
The state court must have jurisdiction over the military member, and must state that it does in the court order.
When does a court have jurisdiction over a military member? In any of the following cases:
- If the military member is a resident of the state, and does not live there solely because the member’s military duty station is in the state;
- If the military member lives in the State at the time of the divorce; or
If the military member consents to the court’s jurisdiction by filing an answer or certain other documents in response to pleadings, or making a personal appearance.
Note: If the member is on active duty, the Servicemembers Civil Relief Act (SCRA) may apply.
- If an active duty military member cannot make it to court, then the spouse is required to file a military status affidavit with the court
- The court will appoint an attorney to represent the interest of the absent military member
- The military member, after separating from active duty, has 90-days to request that the court re-open the case
State courts use the "10/10 Rule" to determine whether a spouse or former spouse is eligible.
- The military member must have at least ten (10) creditable retirement military service years.
- The spouse or former spouse must have been married to the military member for at least ten (10) creditable retirement military service years.
In order for a state court to divide military retired pay, it must award the portion of pay as “property” in the final court order. A final court order may be any of these:
- Divorce decree,
- Dissolution of marriage,
- Legal separation, or
- Court-ordered property settlement.
In order for a state court to divide military retired pay, it must order a monthly award of a fixed dollar amount or of a percentage of the member’s disposable retired pay. If the award is a fixed dollar amount then the former spouse will not be able to receive any of the military member’s retired pay cost of living adjustments (COLAs); however, if the fixed amount is a percentage of the member’s disposable retired pay, the former spouse’s award will increase over time because of the periodic living adjustments.
Note: If the court’s award is not given in definite terms, or if the award is attached to some other obligation (i.e., alimony) or figures that are subject to change (i.e., Survivor Benefit Plan premiums) then the entire award is unenforceable.
How can a former spouse apply for enforcement of a state court award?
The former spouse must submit the following:
- Completed DD Form 2293, signed by you (the former spouse)
- A Clerk of Court certified copy of the final court order (the document stating your entitlement to an award)
- A copy of the marriage certificate (unless the marriage date is stated in the court order)
- If applying for child support, include the birth dates of children
- Completed Direct Deposit Form
- Completed IRS w4-P
You may fax or mail all of the above to:
Defense Finance and Accounting Service Cleveland DFAS-HGA/CL P.O. Box 998002 Cleveland, Ohio 44199-8002
Fax 877-622-5930. If you choose to fax, please include the following:
- The military member’s social security number (on all documents)
- Return Phone number
- Return fax number