Is there an automatic right to benefits for a divorced spouse? No.
There is no automatic right to benefits for a former spouse from a military spouse’s retirement benefits. Instead, the Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes state courts to distribute military retired pay to a spouse or a former spouse. The USFSPA also authorizes the Department of Defense to enforce state court orders. This means that there must be a state court order that awards the former spouse a portion of the military retirement benefit as marital property. Thus, any military retirement benefit should be addressed in the marital settlement agreement and the court order. To fall within the USFSPA, a member and a former spouse must have been married to each for at least 10 years, during which time the member performed 10 years of military service. This is also known as the 10/10 rule.
Once the state court awards a former spouse a portion of the military retirement benefits, the former spouse must submit an Application for Former Spouse Payments from Retired Pay (find out how to apply here), along with the state court order to the U.S. Department of Defense. Once a completed application is processed, the payment will then be made directly to the former spouse within 90 days.
How much is the divorced military spouse entitled to? It depends…
The amount of benefits a former spouse is entitled to is determined by state law, but is capped by federal law. In Florida, military retirement is viewed as a marital asset, but only the marital portion may be equitably distributed, Blaine v. Blaine, 872 So. 2d 383, 384 Fla. (4th DCA 2004) (citing Bogard v. Bogard, 490 So. 2d 43 (Fla. 1986)). This means that only the portion of military retirement accrued during the marriage is subject to equitable distribution. The retirement benefits involve non-disability retirement, but not retirement for disability or disability compensation.
Also, regardless of the amount the state court awards to a former spouse, the Consumer Credit Protection Act limits the amount that can be deducted to 50 percent of the disposable retirement benefits (15 U.S.C. § 1673). Disposable benefits are, “the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order,” and are increased by the cost-of-living amounts granted to military retirees from the time of the divorce to the date the member retires.
Practitioner Tip
The Defense Finance and Accounting Service has announced that the following information must be included in orders entered after December 23, 2016:
If the member entered the service before September 8, 1980:
- A fixed amount, a percentage, a formula, or a hypothetical that the former spouse is awarded;
- The member’s pay grade at the time of divorce;
- The member’s years of creditable service at the time of divorce; or in the case of a reservist, the member’s creditable reserve points at the time of divorce.
If the member entered military service on or after September 8, 1980:
- A fixed amount, a percentage, a formula or a hypothetical that the former spouse is awarded;
- The member’s high-3 amount at the time of divorce (the actual dollar figure);
- The member’s years of creditable service at the time of divorce; or in the case of reservist, the member’s creditable reserve points at the time of divorce.
Furthermore, the retirement division should be made by percentage, as opposed to dollar amount, as it allows for automatic cost of living adjustment for the former spouse. If the retirement division is made by a specific dollar amount, the former spouse does not get the automatic cost of living adjustment.
