Uniformed Services Former Spouses Protection Act
The Uniformed Services Former Spouses Protection Act (USFSPA) was enacted in 1982 to offer some financial protection to former spouses of a service member. USFSPA focuses on the division of benefits earned during the marriage. Disability pay is not included in USFSPA and cannot be divided under its terms.
As part of USFSPA, the 10/10 rule allows for direct payments to the former spouse from the servicemember's pension. To qualify under the 10/10 rule the servicemember must have at least 10 years of creditable service that contribute to the servicemember’s retirement, there must be 10 years of marriage, and there must be 10 years of overlap.
If the former spouse is awarded a portion of the servicemember’s Department of Finance and Accounting Service (DFAS) pension, the rule allows the former spouse to receive direct payments. Direct payments are preferred because the former spouse isn’t dependent on their ex-spouse to send payments. And, if the former spouse must refinance any property or debts, the bank may favor direct deposits.
Direct payments can take over three months to process and receive. The judgment language should account for this time and require the servicemember to directly pay to the former spouse until the withholding order takes effect.
Survivor Benefit Plan
When the service member dies, their military pension payments terminate. For a former spouse to continue to receive payments, the service member must have elected into an annuity plan to protect their beneficiary’s benefits. The Survivor Benefit Plan (SBP) is one annuity plan available to the servicemember.
The SBP allows the servicemember’s beneficiar to continue to receive pension payments after the service member's death. The SBP is a percentage of the servicemember’s benefits. Generally, the SBP benefit is capped at 55% of the gross wage. This is not an automatic plan. The service member must enroll in the coverage.
Beneficiaries of the SBP can be the service member’s spouse, former spouse, and/or children.
The cost of the SBP depends on the coverage elected. Generally, there is no cost if the servicemember is on active duty. However, during retirement, the cost can be up to 6.5% of the gross retirement pay. A servicemember can opt to have reduced coverage of their pay. If the servicemember elects for a reduced SBP, the cost is calculated on the income covered.
The SBP can be amended after a divorce judgment has been entered. To protect the SBP, the divorce decree must establish language to protect the former spouse from the servicemember unilaterally changing or canceling the plan. If the divorce decree orders the servicemember to continue to elect the SBP, the service member will need the consent of the former spouse before they can change the coverage.
TRICARE is a health care program of the United States Department of Defense Military Health System. TRICARE offers benefits for the United States Forces Military personnel, military retirees, and dependents.
The 20/20/20 rule allows the former spouse to claim full military medical care, including TRICARE. Similar to the 10/10 rule, to be eligible for medical expense coverage the former spouse must have been married to the servicemember, must have 20 years of creditable service, 20 years of marriage, there must be at least 20 years of overlap between the service and marriage, and the former spouse is not enrolled in an employer-sponsored health plan.
To claim the benefits, the process and documents vary by base administrative personnel. Generally, at a minimum, the former spouse must bring a certified copy of the judgment of divorce/dissolution and a copy of the marriage certificate to receive their benefits card. If children are involved, the former spouse will also need to bring their children’s birth certificates.
Just like with a regular divorce, remarriage can affect the former spouse’s ability to claim or continue claiming benefits. If you are a former spouse receiving benefits and are thinking about getting married, please contact our office to schedule an initial consultation to discuss how your benefits may be affected.
If the former spouse doesn’t meet the time requirements established above, the former spouse still may receive a portion of the retirement pay through the general property divisions guidelines established in their state.
For more information about military divorces, please visit the Defense Finance and Accounting Service website.
Military Divorce Attorneys in North Dakota & Minnesota
Gjesdahl Law offers a team of dedicated divorce attorneys experienced in handling sensitive cases like military divorce and separation. For more information on our legal services in either Fargo, North Dakota or Moorhead, Minnesota, get in touch.
Alexa joined Gjesdahl Law, P.C. in 2020, after clerking with the Clay County District Court.
Alexa is originally from Winnipeg, Manitoba where she completed her undergraduate…
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