1. Uniformed Services Former Spouse Protection Act and Beyond
Mary M. Benzinger, Esq.
Legal Assistance Policy Division
Client Services Branch
(703)
September 26, 2007

2. Overview Division of retried pay
Continuation of Health/Dental Benefits
Payment of child support and spousal support from retired pay
Proposed legislative changes
Other Military Privileges/Benefits
September 26, 2007

3. Uniformed Service Former Spouse Protection Act
Authorizes state courts to divide military retired pay as property
Directs compliance with Court orders specifically providing for the payment from the disposable retired pay of a member to the spouse or former spouse of that member.
September 26, 2007

4. USFSPA
DOES NOT…
Require division of retired pay
Dictate a formula for division
Whether and how division occurs is a matter for the state courts/laws to decide
September 26, 2007

5. “Uniformed Services” Armed Forces Commissioned Corps of NOAA and PHS
September 26, 2007

6. “Disposable” retired pay
=Total monthly retired pay to which a member is entitled
Does NOT include pay waived for disability paid to you by the VA
Court can’t direct payment of more than 50% to former spouse
Payable no less than monthly & terminates according to court order, death of Member or death of former spouse
September 26, 2007

7. Retired Pay as Property
Does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse.
Does not authorize any court to order a member to apply for retirement or retire at a particular time in order to effectuate any payment under this section.
September 26, 2007

8. Division Methods
Fixed dollar amount or percentage (N.B. fixed dollar amounts do not get COLAs - DoD proposed legislation to change this)
Formula awards (yrs of marriage (or points earned) over total yrs (points) of service x a multiplier)
Hypothetical based on basic pay at time of division
Hypothetical based on basic pay at time of eligibility
September 26, 2007

9. State application
Formula used varies by state (you can agree on anything within DFAS recognized formulas)
Gillmore Rule and community property states.
DoD proposed legislation: Base all awards of military retired pay on Member rank and time served at the time of divorce (prospective only) and prohibit Gillmore distributions
September 26, 2007

10. The “10 year” rule
Effects direct payment to former spouse by DFAS - NOT the entitlement of former spouse to division of retired pay
If not married 10 or more years during which SM performed 10 years of service, DFAS cannot pay the former spouse directly
If 10 year test not met, SM pays former spouse directly
DoD proposed legislation: revoke the rule.
September 26, 2007

11. Direct Payment Application
Former spouse must submit court order and DD 2293 for direct payment
Must submit within 1 year of court order
DoD proposed legislation:
Permit Member to submit the application
Extend application period from 1 yr to 5 yrs.
September 26, 2007

12. State Court Jurisdiction to Divide
Must have jurisdiction over Member by reason of
Residence, other than because of military assignment;
Domicile; or
Consent to the court’s jurisdiction
DoD proposed legislation to eliminate this jurisdictional requirement
September 26, 2007

13. Survivor Benefit Plan
DFAS can only deduct the premium from the Member’s disposable retirement pay.
Only one SBP spouse may be designated (“deemed election” rule)
DoD proposed legislation:
permit courts and parties to determine who pays the premiums
allow multiple SBP beneficiaries (presumption in proportion to allocation of retirement pay)
September 26, 2007

14. Small benefits
DoD proposed legislation: If the present value of former spouse’s share does not exceed $ , upon election by former spouse, Secretary shall pay out lump sum directly (may be rolled over into IRA).
Applies to retired pay and SBP annuity.
September 26, 2007

15. Child and Spousal Support orders
Child and spousal support orders may be served on the Secretary (or designated agent) and will be paid out of disposable pay.
September 26, 2007

16. Multiple Court Orders Paid on a first-come, first-served basis.
Conflicting court orders for same spouse or former spouse, least amount will be paid (if sufficient disposable pay available to do so) , the difference between the orders will be retained until such time as that Secretary is provided with a court order which has been certified by the member and the spouse or former spouse to be valid and applicable to the retained amount. Upon being provided with such an order, the Secretary shall pay the retained amount in accordance with the order.
Member still liable to spouse or former spouse for balance owed if insufficient disposable income to pay all orders in full.
September 26, 2007

17. “20/20/20” Former Spouse Unremarried
20 years of marriage (date of marriage to date of divorce decree or annulment order)
20 years of creditable service
At least 20 years of creditable service during the marriage
September 26, 2007

18. “20/20/20” Eligibility for Continued Health Coverage
20/20/20; and
Does not have medical coverage under an employer-sponsored health plan
Lifetime coverage
Terminates upon remarriage and cannot be reinstated
September 26, 2007

19. “20/20/15” Former Spouse Unremarried
20 years of marriage (date of marriage to date of divorce decree or annulment order)
20 years of creditable service
At least 15 years (no more than 20) of creditable service during the marriage
September 26, 2007

20. “20/20/15” Eligibility for Continued Health Coverage
20/20/15; and
Does not have medical coverage under an employer-sponsored health plan
One year of coverage (for Divorce decrees on or after April 15, 1985)
Can purchase “continuation” policy (available for not less than two years)
September 26, 2007

21. Commissary/Exchange Privileges
unremarried
20/20/20
Lifetime privileges
Terminates upon remarriage and can be reinstated upon termination of that remarriage
September 26, 2007

22. Local Legal Assistance
Army
Fort Myer, (703)
Legal Assistance Policy Division-Rosslyn (703)
Fort Belvoir, (703)
Walter Reed, (202)
Air Force
Bolling AFB, (202)
Andrews AFB, (301)
Marines
Henderson Hall, (703)
Navy
Navy Yard, (202)
September 26, 2007

23. Lawyer Referral Services
Virginia Bar Association:
Telephone Number: (804)
Maryland Bar Association
Montgomery County: (301)
Prince George’s County: (301)
D.C. Bar Association:
Telephone Number : (202)
September 26, 2007