Military Divorce? The Uniformed Services Former Spouse Protection Act May Support You Through the Process

Being the spouse of a military service member comes with a number of benefits related to your spouse’s services in the armed forces. When spouses realize they can no longer make a marriage work, they may fear making a tough choice between staying in a relationship that drains them or losing the benefits and protections they rely upon.

Recognizing the difficulty of this choice, Congress passed the Uniformed Services Former Spouse Protection Act. This federal law ensures that the former spouses of military members still have access to certain benefits, even if the couple divorces. 

Under the Uniformed Services Former Spouse Protection Act, a military service member’s ex-spouse may still be entitled to medical care, exchange and commissary benefits, and an equitable portion of their former spouse’s retirement pay.

The law allows state courts to consider military retirement pay among the shared property to be divided in a divorce-related property agreement. Under this law, a Washington state court may divide the retirement pay between the service member and their spouse as part of divorce proceedings, even if that pay is not vested yet (even before the service member earns it). Whenever the retirement pay bests and the servicemember begins to receive it, the ex spouse will also start receiving her awarded portion.

In addition, the Uniformed Services Former Spouse Protection Act allows former spouses to access:

• Healthcare at military treatment facilities, such as VA hospitals,
• Access to military exchanges and commissaries in some circumstances, 
• Additional pay and benefits in some cases if they are the victim of spousal abuse or their children have suffered child abuse, and
• Receive part of their former spouse’s retirement pay directly from the federal government if certain conditions apply.

To receive direct payment of retired pay, the divorcing spouses must have a court order or reach a property settlement that is accepted by a court. The court order or property settlement must state in writing that the spouse is to be paid directly from disposable retired pay. It must also specify that the pay the spouse receives is related to a support or property division goal of the divorce, such as paying child support, spousal support, or dividing retired pay when the spouses are married for at least 10 years, and the service member spouse has at least 10 years of creditable service. In the case of a property division, the court order or property settlement must name either a dollar amount or a percentage of the service member’s disposable retired pay that the former spouse is to receive. 

While the Act expands access to benefits for the spouses of service members during a divorce, it also has limits. For example, direct payments end once the terms of the divorce settlement or court order are met or if either party dies. 

In addition, the Uniformed Services Former Spouse Protection Act doesn’t require state courts to divide military retired pay. It merely gives them the option to do so if doing so helps to reach an equitable division of property under applicable state law. Nor does the Act state that former spouses should get a certain amount of money. Likewise, the Act does not give a specific formula for calculating the amount of military retired pay a former spouse should receive – or that the military service member spouse should be allowed to keep.

Finally, the Act does not require that marriage and military service occurred during the same periods. A divorcing spouse may still be able to access their partner’s military service benefits even if the couple married long after the military service member retired. 

The Uniformed Services Former Spouse Protection Act also places certain limits on state courts. A court may only treat retired pay as marital property if the court has jurisdiction over the military service member. This jurisdiction has to be based on more than the fact that the service member has been assigned to military duty in the state. For instance, a court may have jurisdiction if the service member’s permanent address is in the state or the service member agrees to have the state court hear their divorce case. 

Determining jurisdiction is a simple matter in some cases, but it is quite complex in others. It’s especially important to speak to an attorney with experience in military divorces if you’re uncertain where to file a divorce claim to protect your rights under the Uniformed Services Former Spouse Protection Act. 

If you are a current or retired military family that may need to divide assets in the near future, talk to the military divorce attorneys at the Dabney Law Firm. We’re dedicated to helping our clients navigate the divorce and separation process in a way that lays the groundwork for a secure and promising future. Reach out to us today to schedule a confidential consultation.