Former Spouses Protection Act: Comments and Confusion

Recent comments to my Money and Divorce post highlight the confusion about the Uniformed Services Former Spouses’ Protection Act (USFSPA).  While I addressed these topics last fall in Fact or Fiction:  Divison of Retirement Pay, it seems that we’re due for a review.  I’ll post the comments, both online and via email, that I have received, then respond with the facts.  (I apologize for the he/she references.  Even though the military is now nearly 15% female, I almost never get a comment about divorce settlements from a female service member or a male former spouse.)

Comment:

Does this apply to the over 10 years together?

Facts:

There is only one thing that is affected by whether the marriage is more or less than 10 years:  If the marriage lasted more than 10 years,  the Defense Finance and Accounting Service (DFAS) is permitted to make the payment directly to the former spouse, upon the written and approved request of the former spouse.

Comment:

Don’t they have formulas they use?

Facts:

With regard to the division of property, including military retirement pay, there are no formulas written into law, anywhere. Some states may have formulas that are used as guidelines, but even these guidelines are very flexible.  Many people will make up their own formulas, such as 1/2 of the percentage of time that the marriage overlapped with military service. Other ways to calculate a division might include the rank and time in service at the time of the divorce. A really good calculation would factor in all the other variables, such as the other retirement accounts the couple might have, Survivor Benefit Plan benefits or whether the service member might receive disability compensation from the VA.The reason there is no formula is because retirement pay is only one of the many assets of most divorcing couples, and decisions about it have to be made while considering all the other factors at play. Most families have debt, savings, vehicles, house(s), investments, and other retirement accounts.  A property settlement agreement should address all these issues together, taking into account the specific situation of the divorcing couple.

Comment:

Why should she get my retirement pay for my entire life?  It should stop after a certain number of years, or if she remarries.

Facts:

The division of marital assets is a permanent settlement, regardless of the nature of the asset being divided.  When a house is designated to one party in a divorce, there aren’t stipulations.  The house remains the property of that party, regardless of remarriage, or the passage of time, or whatever else changes.  The same is true for cars, savings, investments, and all retirement assets, both civilian and military.

Comment:

Why does the government get to tell me what to do with my retirement?

Facts:

I’m going to use part of a comment from a reader, because it beautifully clear and concise.

“The division of military retirement, whether currently eligible or possibly eligible in the future, is handled by the states in accordance with state law having jurisdiction. The ONLY role of the Federal government is to pay an ex by allotment if married over 10 years.”

Comment:

Minimum is 10 years she has to be marred to you. Don’t let her lawyer bully you into thinking she is entitled.

Facts:

Military retirement pay MAY be divided after any length of marriage.  Obviously, most reasonable people wouldn’t think it right to divide retirement pay after a short marriage.  In my opinion, there should be some sensible calculation that considers the length of marriage, the length of service, the time that the marriage and the service overlaps, and removes post-divorce promotions and longevity raises from the equation.  However, every situation is unique and there is no one-size-fits-all solution.

I will continue to address this issue in upcoming posts.  In the meantime, two great references are:

Defense Finance and Accounting Service (DFAS) Uniformed Services Former Spouses Protection Act (USFSPA) Legal Overview

Uniformed Services Former Spouses Protection Overview

About the Author

Kate Horrell
Kate Horrell is a military financial coach, mom of four teens, and Navy spouse. She has a background in taxes and mortgage banking, and a trove of experience helping other military families with their money. Follow her on twitter @realKateHorrell.
  • J. T.

    Unfortunately Unit Legal Officers (who are NOT lawyers) frequently mis-represent this ‘law’ and other regulations when dealing with a Servicemember with a troublesome spouse. My unit’s Legal Officer threatened me with Courts-Martial if I didn’t follow his direct orders, which (it turned out when I could finally get legal advice) were un-lawful & illegal, however since I did follow them I was told, by the Lawyer) I had no recourse against the Legal Officer.
    The Military Legal system is not the friend of the Servicemember, especially if your soon-to-be ex-spouse makes big complaints (Congress, DOD IG, DON IG, CO, XO, CMC, etc.)

    • KJ

      You must be in a different branch of service than the Air Force. AF doesn’t have legal officers who are want to be lawyers giving out legal advice like it’s the gospel. I am a former spouse who was married to a JAG

  • Ron

    I have been divorced for 29 years. She has remarried and her husband died leaving her is good shape yet she continues to take my retirement. Its not right. I agree she should be paid up to the length of marriage. That;s all. But for life.
    Its not right. Iam the one suffering.

    • Kate

      Unfortunately, division of retirement pay is an all-or-nothing situation. Divorcing couples who want compensation to be set for a certain amount of time need to make sure it is structured as alimony or similar payments and not have a division of retirement pay.

    • ldajnowski

      You are absolutely correct. This is just one part of the FSPA that disrespects the serviceman/women for the rest of their life.
      I served in combat two times and was not married during those periods and I served additional years and gained more rank when NOT married too but the ex-spouse (remarried too) still gets a very large percentage of my military retired pay even though I was the one who sacrificed the best years of my life and now she is be rewarded. She wanted the divorce to get married to a man she was seeing behind my back and U.S. government rewards infidelity too. This is disgraceful to say the least.

  • Keith

    When i retired in 2005 i was told by DFAS that there are lots of requirements that enables the ex-spouse this benefit. Such as accompined tours, relocations, and some other factors. Is this not the rule?

    • KJ

      The unique thing about being a military spouse whether male or female is you do support your military spouse in so many ways which most spouses freely do and very proud of their husband or wife . The member made a oath to his country to serve and that entails a lot if TDYs, deployments, going to school for advancement, being called in the middle of night to go into work, a lot of moves etc… It’s the non military spouse whose career has to start over with each move, more times than not be there to get kids into new schools, tend to the house and yard maintenance, plays the mom and dad role and even though they are married sometimes it feels like you aren’t. That is the sacrifice spouses make and you won’t find many who will complain because that is their role as a spouse of a member and they should be entitled to benefits if there is a divorce

      • USFSPA Killer

        There are other branches of federal gov’t that send their employees on quasit-military duties but these departments were protected from having their retired pension (yes, “pensions”) divided in divorce !

    • Kate

      Keith, the only thing that the FSPA does is allow state courts to consider military retirement as a marital asset in a divorce. Individual state courts may handle the situation however they want, though I always recommend that divorcing couples hammer out a settlement agreement themselves and not let the court decide.

      There is no rule about requirements for the USFSPA to come into effect. It is the law for all divorces that have a military member, and it is very similar to the law that allows civilian pensions to be divided.

      • USFSPA Killer

        There is only ONE governmentality which will NOT divide military retired pay – the Commonwealth of Puerto Rico – for its natural born military retirees

  • Chel M.

    I have been searching for the answer to my question for years and was hoping I would find it here, but no such luck. I am married to a veteran who receives a retirement check just like I do. he was married to me over 10 years of my service. I was married to him about seven years of his. My point is he has a check. Does he still get half of mine?

    • KJ

      I sent a message a few minutes ago but it doesn’t look like it was posted, but I’m not a computer expert so I might had done something wrong. I’ve read each comment and may I ask if the members in question is Regular AF or another branch,Traditional Guardsman/Reservist, or Active Duty ANG/Res? I was a Retirement Tech recently, and former spouse so I may be able to answer your question

      • Keith

        I am retired Air Force, spouse was never enlisted

        • USFSPA Killer

          Keith – So, – what’s your point ?

    • KJ

      You stated that you are married to a veteran and it sounds like you are a veteran also; if that is correct, and if you were to get divorce (which I hope that never happens) you both would be entitled up to 50 percent of each other’s retirement pension but DFAS will only do direct deposit to the former spouse in which the ex spouse had 10 years of satisfactory service while married. The former spouse of member with less than 10 years will have to receive their portion by check/money order etc which should be written in detail in the divorce decree. If you agree it can be stated in the divorce degree each of you waive the others military retirement pension

      • Chel M.

        Thanks for your reply. I calculated and determined that I was married to him about 6 years of his service. I am also 100% service connected, and he does not have a job, does that matter?

        • Kate

          Chel M., you and your husband can craft a settlement agreement however you desire and see appropriate between the two of you. There are no RULES about division of military retirement pay. It is up to the two parties, or, if they can not agree, their lawyers to fight it out or take it to court.

          Keep in mind that VA disability benefit are not divisible, though they can be considered as part of overall income, particularly when calculating child support.

          • Chel M.

            Thank you for your reply. I didn’t realize I could go after his retirement pay and would not ordinarily consider it , but no doubt he will go after mine, so it is what it is.

      • USFSPA Killer

        KJ – Military retired PAY is NOT a “pension” ! You need to call it by its LEGALLY correct name – MILITARY RETIRED P-A-Y ! ! ! !

    • Desertknight

      As this issue is addressed as part of the separation and divorce settlement, if you did not claim a portion of his retirement and he did not claim a portion of yours, then it was never addressed. If it was addressed in the divorce as ‘no claim is made,’ and the agreement is considered a ‘final’ settlement, then the issue may be closed. However, if it was omitted, you may ask to re-open the settlement and claim a portion of his pension but he will probably counter-sue for a portion of your pension. In simple math, you could get 7/20 years while he could get 10/20 years. But, the point is, why re-open the issue. Just move on.

      • USDFSPA Killer

        Desertknight – Haven’t you been reading my rants – military retired pay is N-O-T a “pension” ! No military retiree get a “pension” – they ALL get military retired PAY. When Congress specifically uses the word “pension” in a new law to say that then military retired pay is now called a “pension”, THEN it will be a “pension”. But note this – the proposed changes to the military retirement system which both houses of Congress now have included in their versions of the 2016 Defense spending bill – NEITHER of them call military retired pay a “pension” – BUT they are describing all the ASPECTS of turning military retired pay into a contributory, deferred income pension, but still not using the word “pension” to describe it !

  • Keith

    I was Air Force and ex-spouse was never enlisted.

    • KJ

      The judge that presided over the divorce takes into consideration the earning capacity of the former spouse, but the judge is also very aware of the sacrifices made by the former spouse married to a military member and he can set her portion to receive up to 50 percent Of your retirement pension. As you already know if the former spouse was married to you 20+ years of your satisfactory service time she would be entitled to BX, commissary etc privileges along with medical

  • ldajnowski

    We know what the FSPA says; what we are all saying is that this Act is illegal and all states will favor the ex-spouse during the divorce. Even when the ex-spouse remarries the serviceman/women has to continue to pay and that means the new spouse reaps benefits from these payments. Alimony is NOT for life but FSPA is for life. The serviceman/women has to die to stop these illegal payments. It is a disgrace this FSPA ever went into effect. We know the reality of the FSPA when it comes to a divorce in all 50 states so why do you just comment on the FSPA rules and not comment on how Unfair this act is.
    Also any rank/years accumlated by the serviceman/women after the divorce is taken into consideration even though the ex-spouse had nothing to do with the increased rank and additional years of service so why is the serviceman/women always the scapegoat! I served before I was married and served after I was married in combat and my ex-spouse had nothing to do with my combat service! This is simply disgraceful towards us who have served in combat and served period.

    • Desertknight

      We have alimony for life in Florida! Also, instead of treating your retired pay as an annuity, you should treat it as an IRA. The reason is because as an IRA, they get half and we tend to accept this fate because it is a ‘lump sum’ payment. But, when we treat it as an annuity, we feel the pain of the divorce, every month as our former spouse get’s their share while we get less. I believe the bigger issue is that our former spouse receives payment for every promotion and raise, years after the divorce.

      • ldajnowski

        Never heard about alimony for life in florida and I live in florida. Alimony is decided upon in the court during the time of the divoce and that is a separate matter unlike the topic we are discussing which is FSPA. You are absolutely correct that we continue to get less even after decades after the divorce. I tell all young men and women, do your 4 years and get out, go to school, get a trade, etc but DO NOT stay until retirement since the U.S. government will find a way to screw you. The political types try to take credit for military successes but they screw us with their regulations and the public does not even know this is happening. I have not found one civilian that knows what FSPA is since it is the U.S. Governments secret on how to screw over veterans.

        • Scott

          Florida ‘lifetime’ or ‘permanent’ alimony has been around for a long time. Efforts to reform this has been active for the past 10 years. GOV Scott refused to sign the legislation last year because it included the ability to petition the court to remove permanent alimony, retroactively. A woman’s group stated that without their lifetime benefit from alimony, they would be able to survive. So, there are men paying alimony from their social security benefits until one of them dies.

        • Scott
      • USFSPA Killer

        Do you know there is a Florida Alimony Reform movement on-going ? Just “Google” Florida Alimonty Reform

        • Scott

          The reform effort has been ongoing for many years. Once, it made it all the way to the Governor, only to be vetoed because a group of former spouses (women) complained that their livelihood would be negatively impacted (they would have to get jobs and earn their way in life), if the bill was approved.

    • Kate

      I fail to understand how it is illegal. It is modelled after the laws that govern division of civilian pensions and other retirement accounts such as IRA. The law was designed solely to give military former spouses the same rights as any other former spouse. Why should a former spouse be penalized because they were married to someone in the military.

      The Act does not require lifetime payments, but the mechanism is such that if you are dividing military retirement, it is a lifetime decision. There are many other ways to handle the division of military retirement pay in a divorce, such as offering a “cash out” to waive the right to division of pay, or offering alimony in lieu of retirement pay, or offering physical property in lieu of retirement pay. I have seen all these used successfully in divorces where the service member felt strongly about not dividing retirement pay.

      Also, it is absolutely possible to structure the amount of divided pay based upon years of marriage/years of service and rank at time of divorce. It can be tricky to get the wording put together in such a way to satisfy the requirements put upon DFAS, but it can be done.

      I understand that you are disappointed with the way your divorce settlement was handled, but I do not believe the Act itself is at fault.

      • Robert

        Kate,
        Civilian retirement division is based on retirement benefits at the time of divorce not 10 or 15 years later. Additionally people state that a ex-spouse is vested in your retirement. If that was the case they would continue to draw it after the serviceman’s death and their heirs would be also be vested until the service members death. I also disagree that there are not written formulas. NC for example has written formulas in their statutes. Why do we have a law just for service members. The federal govt does not have laws concerning civilian retirement only states. It is unconstitutional since it singles out a single class of citizen,

        • Kate

          Robert, I’d done some research to be positive that I am not confused. Federal law (The Employee Retirement Income Security Act of 1974, or ERISA) governs all qualified retirement accounts. ERISA specifically allows that civilian retirement may be divided as part of the marital assets of a divorcing couple. From the ERISA FAQ webpage, “A state court can award part or all of a participant’s retirement benefit to the spouse, former spouse, child, or other dependent.” This is parallel to the language used in the USFSPA, except that military members can not have their retirement pay awarded to a child or other dependent.

          You can find this source here: http://www.dol.gov/ebsa/faqs/faq_consumer_pension

          I’ve never heard anyone argue that military spouses are vested in the active member’s retirement, and I agree that would be an incorrect statement.

          The USFSPA does not contain any formulas or guidelines for division of military retirement. States may have their own formulas, though NC is the only state that I am aware has a formula (and it is pretty flexible.)

          Thanks for encouraging me to do more research. I am always glad to learn more.

          • USFSPA Killer

            Kate – Again, you are comparing apples to oranges by using the ERISA to discuss military retired pay. MRP IS NOT a pension – it is reduced CURRENT INCOME – the IRS and the US Tax Court have repeatedly stated it in their decisions.

        • USFSPA Killer

          Robert, you are correct in your observation of the USFSPA being unconstitutional. It was the target of a lawsuit (Adkins v. Rumsfeld) back in 2004 to 2007 which the US Supreme Court would not hear.

          • Kate

            Why would the Supreme Court not hear it?

          • USFSPA Killer

            The SCOTUS never discusses why they refuse a case. I’d guess that would open the door to make sure a case got heard. Refused cases are listed on a rejection list with no comments.

      • ldajnowski

        When an expouse gets benefits for periods of time and rank when NOT married to the serviceman/women makes this FSPA totally illegal. Also remarriage should nullify the FSPA payments immediately. The ex-spouse decided to enter into a new life with someone else then that should end what took place previously; no one forced the ex-spouse to remarry. I was not married when I was in combat prior and after the divorce and gained rank and years after the divorce but the ex-spouse is getting paid for my increased rank and years of service even thought we were not married and you are trying to say this is OK; is it a disgrace to the serviceman/women; a Total Disgrace!

        • Kate

          kdajnowski, as you know, there is no requirement that the former spouse receive a portion of the pension attributable to additional time in service and promotions that occur after the divorce. That is up to the two parties, or the courts if the two parties can not agree. DFAS has a whole document on the acceptable wordings of the division of pay, and it addresses these types of situations in pages 7 through 11. http://www.cobar.org/repository/Inside_Bar/Family

  • R.O.

    Interesting site. Was with ex 20+ years ex has full benefits. Legal rep managed to slip dates for 1/2 retirement annuity even though 4 years were served prior to marriage. Filed for correction, judge ruled no authority to adjust signed decree. However, divorce decree states retirement pay to be divided as directed in attached QDRO. NO QDRO was ever negotiated and is not in existence as ex knows service dates and marriage dates will come into question. DFAS stated they were paying ex 50% even without QDRO. Divorce was 8 years ago, would it be reasonable to obtain legal to request DFAS provide copy of required QDRO. Which they cannot. Then pursue correction to separation percentage?

    • KJ

      Chel, are you still married to the member or are you pending divorce? Whether he has a job or not, the judge would look at financial documents and decide what percentage you would be reasonably entitled to since you were only married to him for 6 years and since you are receiving 100 percent of service related disability which is from the VA then I would need to check on that because I want to say by law that wouldn’t be considered when giving a percentage of retire pension

      • Chel M.

        Yes, I’m still married to him and no action has been taken to divorce yet.

      • Desertknight

        Disability can be considered in the divorce. Many of my friends have to pay a portion of military pension and VA disability pension to their ex. The reasoning, used by judges and former spouses, is that many retirees chose medical retirement and VA disability instead of regular retirement, believing they could avoid paying their spouse a portion of their pension. So, many judges include all sources of income.

        • guest

          Which is actually federally illegal since disability pay is protected from everything but child support and in some minimal cases, temporary alimony. If I were your friends I’d take those decrees up through federal court to fight.

          • USFSPA Killer

            Obviously, you are not aware of the Supreme Court holdings in “Rooker-Feldman” and further narrowed by the “Exxon-Mobil” holding – State court “losers” are prohibited from bringing a state case into federal court on the sole reason they didn’t like the state courts negative decision against them. You can bring a state court suit in federal court if you can prove the state trial court applied the law wrongly or applied the wrong law.

          • guest

            In which case, if the ex spouse is getting a division of DISABILITY PAY, it is illegal and would therefor be open to escalation to a higher court. Disability pay can be docked for child support, sometimes, in some states, temporary alimony. It is NOT eligible for division of property like retirement pay is.

        • KJ

          10 U.S.C 1408 exempts VA Disability pay and cannot be divided for retirement pension to the former spouse, but can have an allotment due to child support/alimony payment required to be made according to div decree.

          If a member is 50 percent disabled an over he or she is entitled to both military retire pension and VA disability pay. VA pay is not taxable which is another benefit as to why so many members go through the process of getting approved and not to mention get out of the former spouse receiving anything.

          Jenn it’s time for you to get a lawyer and there are plenty out there that are retired JAGs and Judges with military retirement. They are knowledgable in what you are entitled to when going through a div from member. Unfortunately, if you are a spouse of a JAG going through a divorce then they are not as forthcoming about you receiving what you are entitled too, which is sad, but if they can live with themselves, sleep at night with a care of what they are doing to the mother of their child then all I can do is pray for that person. That’s another story.

          Get an attorney, and if doesn’t show up to court etc or refuses to sign the judge can still grant the divorce. You can ask that he pay for attorney cost since he has not been supporting his family etc. Don’t let him try to use some scare tactic on you. A lot of members like to think there spouse wouldn’t know the logistics of what they are entitled too as far as military benefits.

          For direct deposit from DFAS it is the former spouses responsibity to submit the proper documents to DFAS which would include marriage cert, div decree, QDRO if decree states see the attached, DD Fm 2293. Not sure how long he served but sounds like he is young so he might have a medical retirement from active duty alone with VA Disability pay.

          As for the individual who is totally against the former spouse act….since you weren’t the spouse of military member it’s hard for you to appreciate the sacrifices they make for their spouse, family and their own career. Like myself, most of the spouses have a deep respect for their spouses/ex spouse serving and we have a tremendous amount of pride.

        • USFSPA Killer

          There is NO SUCH TERM as a “military pension” – Regardless of what it has been stupidly called since it was created in 1940’s, military retired PAY IS NOT a “PENSION” ! ! ! !

          • Scott

            There may be no such term but that is moot. I agree that it is ‘retainer’ pay/reduced compensation as the member and government do not invest in a defined benefit compensation plan, traditional to pensions. However, nearly every divorce court views this pay as a pension and divides it as such. The legal point is moot because no one is willing to correct this oversight. Blame Pat Schroeder (D-CO).

    • Desertknight

      So, you are dissatisfied with 1/2? At what point would be satisfied (75%, 100%)? At what point do you become responsible for your own life and financial status? Maybe another marriage is needed? Just an observation.

    • USFSPA Killer

      DFAS does NOT require a QDRO; however, if one is created, it must state the EXACT SAME CONDITIONS as the final divorce decree. Being such, it’s a useless document when just the divorce decree will do the same job of robbing the retired member of their SOLELY EARNED military retired PAY !

  • JenJ

    What all of this says to me, not that any of us has a crystal ball and can predict others’ behaviors and tendencies in every way, is choose your spouse carefully. Choose your life partner and don’t marry on a whim, if you are military! There are people who hear the stories and “learn” from other unhappy former spouses what they can obtain, and that only gets more complicated when there are children factored in. It’s harder to change it all later, but what I find horrid about all of this goes this way: All these divorce payments to people who weren’t married that long, who are reaping the benefits after the marriage is long, long over…or after they remarried and moved on. But, for me and my husband, who served 21 years AF and retired recently, whom I was married to for 18 of his active duty years…we have to PAY into an account a HUGE part of his pre-tax retirement check, just to “guarantee” survivor benefits if he dies before paying into this account for, like 30 years or until at least age 70! It shouldn’t have to be this way, to be sure, for those of us who have to pay in to “guarantee” something that I might not even receive if I don’t survive my spouse…we’ll just be out that huge amount of his retirement pay each month for all those decades. Oh well…

    • KJ

      Yes, the survivor benefit premium can be high, and if you have enough life insurance or investments in place then to don’t have to opt for the the survivor benefit coverage. You don’t get several chances to decide if you want it or not so people need to make plans early in there marriage for unforeseen early death situations. Having kids does make it harder because you have them to look after. I processed a lot of retirements and the worse part was reading through divorce decrees one right after the other. People needs to start taking marriage vows more serious and reflect back on why you fell in love with your spouse in the first place. Takes two to repair a marriage and it can be done. Of course in abuse situations run run run. Anyhow I’ve talked to spouses who had recently lost their spouse and they would call in and tell us the spouse past away and they need to get pension sent to them and when you have to explain you both signed the document declining survivors benefit and they would not be receiving anything, it’s heartbreaking.

    • Kate

      Jen, I’m curious why you think that you should not have to pay for Survivor Benefit Plan coverage? It is insurance, and insurance must be paid for somehow. Where else would the money come from?

      I don’t mean to be rude; I am truly curious.

      • USFSPA Killer

        Kate – SPB is NOT insurance – it is a poprtion of the retiree’s retired pay which is paid from the Military retirement general fund, which has to be legislated by Congress every year in the Defense Budget, as if the retiree was still receiving it before they died.

        • Kate

          USFSPA, we’ve had this conversation before. The Department of Defense calls it insurance (I’ve provided you with the documentation), and DFAS calls it insurance (I’ve also provided you with that documentation.) It is an annuity, which is a form of insurance.

          It is subsidized by the federal government, but a large portion of the benefits are paid by the premiums paid.

          You may find this document helpful in understanding SBP:

          http://militarypay.defense.gov/survivor/sbp/01_ov

    • ldajnowski

      Sorry to say but when the serviceman/women dies this FSPA payments stop and that seems to be the only solution since the U.S. Government does not want to hear from retired serviceman/women on this topic even though it is disgraceful and should be declared illegal.

      • USFSPA Killer

        You are 100% correct and that PROVES that military retired PAY is NOT a “pension” that can be passed onto heirs of the deceased member or former spouse. The criminal heirs of both retirees and former spouses who don’t report deaths to DFAS just so the retired pay or/and the USFSPA payment continue will be found out as now there are many computer linkages between federal benefit payment entities which share death info with one another! Repayment plans usually are tough and non-negotiable !

    • JFONAV

      You had terrible pre retirement advice. SBP is a racket that should be avoided at all costs. Going through a normal life insurance policy route is much more affordable and useful. I’m sorry nobody explained that to you and your husband.

      • Kate

        JFONAV, could you support this opinion with some facts? I have looked around a lot, and have yet to find a lifetime annuity with inflation adjusted coverage for anywhere near the cost of SBP.

        Yes, you can get much cheaper policies, but the don’t offer lifetime income or inflation adjustment.

        As always when comparing any investment or insurance policies, be sure that you are comparing similar products.

        • Et al – Let’s look at the return vs the investment cost of SBP against commercial life insurance policies – SBP is a high cost up front (to the govt’s advantage, NOT yours!) for only a “selected percentage” of retired PAY on return. Yes, it’s a “see-saw” of advantages and disadvantages, and the potential purchaser must decide what program of post demise income that person wants to provide for their hiers (unless of course a Kangaroo divorce court makes that decision for the retiree). The best solution is for the splitting military couple to “cut a deal” between themselves so the divorce court will just “rubber stamp it” without later costly unnecessary litigation.

  • Dintl

    To clarify this 10 year rule of the FSPA. DFAS will directly send ex-spouse 50% of member’s retirement via direct deposit upon written approval of either party. Is this regardless of what the divorce decree stipulates? The way it reads (how I’m understanding it) is that all that is required is a written request to DFAS.

    • Desertknight

      Divorce decree dictates. Previously, when the law was written, the default was DFAS paid 50%. But the reality is that divorce is (well at least was until Gay marriage) a state’s domain. So, whatever the divorce decree directed, DFAS had to follow. Wasn’t always this way and DFAS tended to pay without regard to decree.

    • KJ

      DFAS will require a divorce decree and whatever addendum it says that goes along with the degree. A copy of the marriage certificate will Also need to be sent. As stated earlier DFAS will only send direct deposit if the marriage was a minimum of ten years or more of members Satisfactory service. They will go by the division that is stated in the decree and/or QDRO and it is not a straight up 50 percent. It could be a percentage up to 50 or lower

    • USFSPA Killer

      ONLY the former spouse can and MUST sign the DD FORM 2293 – not the member nor either lawyer.

    • ldajnowski

      That is true if the ex-spouse contacts DFAS and then DFAS will help them get a lawyer and get a piece of paper that says give 50% or more to the ex-spouse and not even contact the serviceman/women; they just get their pay docked. The serviceman/women has NO RIGHTS when it comes to FSPA; none whatsoever.

      • Kate

        It is not true that DFAS will help anyone get a lawyer or be in any way involved in a divorce.

      • USFSPA Killer

        Idajnowski – Save some of what you are smokin or drinkin for me ! – – It’s not DFAS’s job to assist ANYONE in getting a lawyer; DFAS MUST follow the LAW and notify the service member at least 90 days in advance of the first garnishment/reduction in retired pay, in case the service member can provide a legal reason to stop or delay the garnishment ! (By the way, what are you smokin or drinkin ?)

  • Jenn

    My current husband and i say current because we are still legally married since 2007, is receiving 100% disability due to post traumatic stress disorder (claimed as anxiety disorder, insomnia, depression, post traumatic stress disorder) 100% Service Connected (PTSD – Non-Combat). He has VA believing we are still together and that its not easy for him supporting his wife and two children of 9 and 7 yrs old. We are no longer together because he has a new woman in his life who he impregnated. He doesn’t pay his child support because he tells the court he doesn’t have a job. He recently got his license and passport suspended and has a warrant out for his non- payments. I’m trying to file for divorce but have been scared due to him threatening me to stay off topic when it comes to his disability and his adultery. What can i do because I don’t have proof for a restraining order?

    • guest

      1. He’s 100% PTSD service connected…that is NOT an easy thing to get through the VA so I doubt he’s “making it up”

      2. Disability pay, while protected from division in a divorce (federally) is not protected in the event of child support. You need to hire a divorce attorney and start the paperwork rolling. You don’t need his permission to divorce, if he neglects to show the courts can and will process the divorce without him. Until the divorce is finalized you ARE together since the military only recognizes married, and not so until the divorce is finalized he’s doing nothing illegal by telling the VA you are still together.

  • rgc rgc

    Kate Horrell I read your comment and fact article from June 26, 2015

    “The division of military retirement, whether currently eligible or possibly eligible in the future, is handled by the states in accordance with state law having jurisdiction. The ONLY role of the Federal government is to pay an ex by allotment if married over 10 years.”

    This is not a fact. The federal government made the law for the people in the military and most civilian retirements are not considered property in a divorce. When you write an article, quote the law verbatim (section and paragraph) and not a readers or your interpretation as a fact. By doing this, the reader gets a better understanding of the law and it lessens the confusion to all.

    • Kate

      rgc rgc, Most of my readers find the text of federal code difficult to interpret. It is my job as a financial educator to make it understandable.

      I can not enter the full text of Title 10, Subtitle A, Part II, Chapter 71, Section 1408 here because it greatly exceeds the number of characters permitted in a comment. However, you are welcome to do an internet search to see the full text.

      I disagree with your assessment that “most civilian retirements are not considered property in a divorce.” A pension earned during a marriage is considered to be a joint asset or the marital property of both husband and wife in every state in the US. Pensions and other retirement assets can and regularly are divided in divorces.

      • USFSPA Killer

        Yes, civilian contributory, defered income pensions which build tangeble funds are quite and very divisible, however, military retired pay isn’t a “pension” at all and never was intended to be a “pension”. Military retired pay never “accrues” as it is reduced current income and is paid on a monthly basis. Neither the member nor the government contribute to a “by name” pension account during any length of member service time. The IRS, the US Tax Court and DFAS have all very clearly stated that military retired pay is not a “pension”.

    • ldajnowski

      Yes you bring up a good point, Government Civilians get treated differently when divorced and the Government Civilian who retires is not under the FSPA and they can negotiate in court without FSPA hanging over their head. So this is what I am saying is that Servicemen/women are treated differently that Government Civilians who retire and this is another reason FSPA is illegal. Government Civilians who retire have sat on their rear ends and collect a fat retirement and then can negotiate their divorice in court to their advantage 100 times easier than retire military servicemen/women who are mandated under the FSPA to pay large amounts of meager retire pay to their exspouse No Matter what the circumstances. Very disgraceful towards the serviceman/women who sacrificed the best years of their lifes.

  • USFSPA Killer

    ONLY the former spouse can and MUST sign the DD Form 2293 application; not the member nor either lawyer – ONLY the former spouse ! You make things WORSE when you further the garbage out there ! Retired PAY is NOT a “joint asset” – it is the SOLE ENTITLEMENT of the military member ! Everyone HAS to know that military retired PAY was never designed as a “pension” ! – It is reduced CURRENT PAY for reduced CURRENT service !

    • ldajnowski

      You are just justifying what the U.S. government does and that is to call different retirement plans by different names and classify them differently to the U.S. Governments benefit. The money comes out the same coffer so to call it reduced current pay is ridiculous; you must be a liberal who lives in a dream world. Let me ask my 75 year old retired military CMSGT that I know if he is on reduced current service for reduced current pay and maybe he woulld like to return to FULL Active Service. I wonder if the U.S. Government would allow him to go back to active duty?

      • USFSPA Killer

        DId you ask “your 75 year old retired military CMS if he knows he’s on reduced current service for reduced current pay” and can be involuntarily recalled back to active service on short notice ? (PS – his memory may be failing him as he had to agree to many conditions when he applied for transfer to the retired reserve ! ) If so, what was his answer ? I am N-O-T a “liberal” ! I am well versed on the USFSPA as I have been one of the 250,000 casualties of it for over 25 years and I intend to do everyting I can L-E-G-A-L-L-Y repeat, LEGALLY, to take the law off the books !

  • mepatsfan73

    Are divorced spouses eligible to recieve a percentage of your VA disability compensation? I know they can recieve your retirement but I wanted to know if they will get part of your VA benefits? VA benefits are designed to fix the service member and not his messed up marriage I would assume?

    • guest

      Other way around, spouses can receive a percentage of retirement pay but disability is protected federally from all things but child support and temporary alimony.

      • Chel M.

        Can you tell me where I can find the law (Title, paragraph, etc.) which states this? I have a cousin who is not receiving child support because, she was told that she can’t touch his disability. I believe she spoke to someone at VA about this. Her ex didn’t retire, he was medically discharged. The time in service was less than 10 years and the marriage may have been also.

        • USFSPA Killer

          The legal protection of VA Disability Comp is found at 38 USC 5301

      • disappointed

        They do not and NEVER get any of your disability. Only the retirement pay that is left. So if you are 40% disable and have 60% retirement left they can only get part of what is left. I hope that makes sense. We just fought for this and that is the rule.

        • USFSPA Killer

          And what prevents a Kangaroo court judge from ordering the disabled retiree from using their VA Disability Compensation to “make up” the difference between the 60% and 100% by putting a check in the mail ??????????????????????????????????? YES, it is done and these Kangarro judges need to be drug and alcohol tested !

        • guest

          and with concurrent receipt they still get full retirement pay, it’s no longer reduced by disability pay

          • Kate

            For the benefit of our readers who are not familiar with concurrent receipt, it is a program that allows certain veterans to receive both their military retirement pay and disability pay without offset. There are eligibility guidelines. In 2012, approximately 40% of military retirees who would otherwise have been subject to the VA offset were able to receive both benefits as the result of concurrent receipt laws.

            This subject is highly controversial and the elimination of concurrent receipt is a regular suggestion in budget balancing conversations.

          • USFSPA Killer

            Kate – You didn’t tell the W-H-O-L-E story ! ! ! CRDP only applies to the 20 year retirees who are VA rated at least 50% disabled ! Any rating under 50% is not entitled to CRDP ! ! ! Many of the vet’s benevolent organizations have been continually hammering Congress after Congress to grant all disabled retirees – both 20 year and under 20 year (Chapter 61’s) CRDP. Congress claims it’s too expensive !

  • Jesse

    Here’s my problem, During the 18 years that we were together during my service my wife did nothing but whore around while I was deployed. She had to children from other men during this time. On one deployment she moved some ass into our housing unit, with our kids there. Once the kids graduated HS I had already told her I was going to get a divorce. With all the pain and suffering she caused how in the hell can she be eligible for anything?

    • USFSPA Killer

      She’s “eligible” because the 97th Congress (1981-1982) passed the USFSPA – the worst stab in the back that career military members could ever get from their own gov’t !

      • Chel M.

        There must be something we could do. This is so unfair. There are situations when the wife/husband is deserving of compensation, but in cases like what was described above it’s a damn shame. I often wonder if this is one of the causes of suicide amongst those who served. What a slap in the face.

    • Kate

      Jesse, a good mediator or lawyer will help her see that her actions have consequences in your property settlement. The law doesn’t require that she get a portion of your retirement, it just allows it. Please make sure you have help with your property settlement and preferably use a mediator to hash it out so that it doesn’t get to court where a judge gets to make an arbitrary decision.

    • ldajnowski

      This is why the FSPA is illegal; details about the divorce matter. The devil is in the details (we should all know that). The U.S. Government is rewarding cheating ex-spouses (men and women) because the serviceman/women has no say so under the FSPA and the lawyers will get everything they can from the serviceman/women and DFAS will go along with that no matter what and the FSPA just opens the Door WIDE OPEN to allowing the serviceman/women to get screwed and the U.S. governement could care less.

  • Jan

    Just a note I’ve observed through the years. Exes will take what they can, even if they don’t deserve it and the divorce was from them screwing around. My husbands ex, waited until after she was remarried, and he & I were married for several years and took him back to court for his retirement and got 35% illegally. Back when it happened, I read the law, and it stated that it must be filed in the resident state of the military retiree. My husband lived in FL, and during his entire service, he was a resident of PA. His ex lived in TX and that is where the decision was made, violating the rules of FSPA. They had only been married 14 years and during that time she had had at least 7 different affairs that he found out about and before the divorce, she moved her current husband into the house. She also kept holding off the divorce, and not signing the papers for a few extra years to keep her Tricare and to gain ‘years’ with him. She worked Civil service and got her job with Spousal Preference because she was married to him. She will be retiring in a few years and he found out she has kept that spousal preference all these years. Guess what – He will be going after her Civil Service Retirement because she wouldn’t have that job if not married to him. Hang in there and fight. Remember, unless the law is changed, it is supposed to be fought in the state of residence of the military member but watch, because as in our case, the judges ignored that law and gave away his retirement anyway violating the law.

    • KJ

      It’s sad and unfortunate there are spouses who does try and take total advantage of members and I am all for former spouses; however, I’ve seen my share of these type cases when I retired military members. If she is still work working at the base where she received her spouse preference there is nothing wrong with that, but if she’s applying for new promotion positions she has to as a promotion candidate and not as spouse preference. Spouse preference is priority when you are on your spouses pcs orders when arriving to new installation in which you do have to provide a copy of those orders when applying for position after arriving. You are not considered in that status once you are hired.

      A Congressional can always be filed and submitted to DFAS if your research is accurate that the ex shouldn’t had been able to go back and receive 35 percent. You need to consider what state had jurisdiction in the divorce process and if the decree was admended in same state which had jurisdiction then I don’t believe he will be able to do anything.

    • Chel M.

      I hope he wins.

    • USFSPA Killer

      Jan – Show me in the USFSPA – 10 USC 1408 – with the specific words that says “it must be filed in the retiree’s state of residence” – You’d better pack a lunch and a tent because you’re going be at it for a LONG, LONG, time ! ! !

  • USFSPA Killer

    Kate – The USFSPA ALLOWS, BUT DOES NOT REQUIRE state divorce courts to divide military retired pay in military divorces. The LAW is “permissive” NOT mandatory ! Be careful of what you write !

    • Kate

      Yes, thanks, I make a specific point to I emphasize that in every post and comment response that I make.

  • USFSPA Killer

    Kate – The USFSPA itself is UNCONSTITUTIONAL ! – Military retired PAY is CURRENT INCOME – it is NOT nor NEVER, EVER was a pension ! The 97th Congress ignored the original law on military retired pay when they covertly crafted the USFSPA. If a member separates with even 40 years of service, there is NO “pension” available because they were not transferred to the retired reserve and legally held in a “available” status. You need to get your facts straight and stop spreading emotional vitriol !

  • USFSPA Killer

    Kate – SBP is NOT an “insurance plan” – it is a continuation of a deceased retired military member’s retired current PAY to their chosen beneficiary.

    • Kate

      USFSPA, I think we are going to have to agree to disagree on this and the other issues you have discussed. SBP is an annuity that is purchased with retirement pay dollars. (Hint: that’s why DFAS calls SBP recipients “annuitants.”) An annuity is a financial contract in the form of an insurance policy.

      While it is true that the premiums and benefits for SBP are based upon retirement pay, and it does provide continuation of income, it is still insurance.

    • USFSPA Killer

      Kate – Even DFAS says it is N-O-T insurance ! ! ! You can disagree all you want, but you need to READ the SBP law and learn that SBP is NOT insurance !

      • Kate

        Actually, DFAS uses the term annuity frequently in their SBP pages, and it occasionally uses the term insurance.

        In addition, the Department of Defense classifies SBP as insurance. Here is an example, “SBP is a way to do this; it is a form of life insurance for part of your retired pay.” You can find this quote in the 9th paragraph of this page: http://militarypay.defense.gov/survivor/sbp/01_ov

        I hope this helps you better to understand SBP.

  • Lois

    Elaine, I am the second wife of a disabled VET. We have been married for over 12 years and he was only married to his ex for 10 years. Although she left him for another man, he had no legal representation during the divorce and foolishly agreed to allow her to draw his full military retirement in order to get out from under the marriage. Further, her lawyer demanded she receive his Suvivor Benefits despite whether or not he remarried. How do you think I feel when I have been with him longer than she has and intend on standing by him during his illness? He has Parkinson’s and has recently begun receiving benefits. Do I think you or anyother ex wife should be low life enough to ask for compensation for his pain and suffering as the result of Agent Orange….you bet your butt I don’t ….if you had children to support my answer would be different. YOU need to stand up on your own two feet and earn your own supper.

  • USFSPA Killer

    Kate – Once again and again and again and again – Military retired PAY IS NOT A PENSION -it is reduced CURRENT PAY for reduced CURRENT service !

  • USFSPA Killer

    Jan – NOWHERE is the USFSPA does it say that it must be “filed in the state of the military retiree’s residence” ! Because of that non-requirement, former spouses do “forum shopping” – finding the most LIBERAL state to file for divorce where they’ll take the retiree to the cleaners ! If you can show the specific paragraph of 10 USC 1408 that says “the residence of the military retiree, please post it – (PS – you won’t be able to becasue it DOESN’T EXIST ! ! ! ! ! ! !)

  • USFSPA Killer

    KJ – Never, ever call military retired pay a “pension” – it has never been nor is now a contributory, deferred income pension plan. It is reduced CURRENT PAY and nothing else !~ ! ! ! !

    • Kate

      Again, for purposes of providing useful information at the level of the majority of my readers, I sometimes use simplified terms. I am well aware that military retired pay is not technically called a “pension.” However, it is a defined benefit plan with all the same characteristics as a pension. The use of the term pension to describe military retirement pay is generally accepted in the journalistm industry and in the financial education industry, and it helps less-savvy service members to understand their retirement pay benefits.

      • USFSPA Killer

        Militar retired PAY has NO “characteristics” of a “pension” ! – Neither the member nor the gov’t make by name contributions to a “fund” with every member’s name and “Social” on it. How can you make such RASH and UNEDUCATED statements about something on which you apparently haven’t read the law; your “pie in the sky” statements only make trying to educate the whitewashed public that much harder ! – If you can’t report the TRUTH, then STAY OUT OF THE DISCUSSION ! ! ! ! !

        • Kate

          Defined benefit retirement plans do not make any by name contributions. It is one of the characteristics of a defined benefit plan, vs. a defined contribution plan, which has individual accounts for members.

          Some characteristics of a defined benefit plan are:

          The employee does not make any contributions.

          A promised benefit is based on a formula in the plan, often using a combination of the employee’s age, years worked for the employer, and/or salary.

          Defined benefit plans typically pay the retiree monthly annuity payments that continue for her or her life life.

          You may find these explanations of the differences between defined benefit and defined contribution plans to be helpful:

          http://www.dol.gov/ebsa/publications/wyskapr.html

          http://www.myretirementpaycheck.org/retirement-pl

          • USFSPA Killer

            Baloney with your “defined benefit plan jibberish” ! Since military retired pay is a continuation of active duty pay at a reduced rate, does that mean that active duty pay is a “defined benefit plan” ? – Of course not ! ! ! ! ! Your continued effort to rationalize public misunderstanding of military retired pay only serves to perpetuate the emotional vitriol that created the USFSPA in the first place !

  • USFSPA Killer

    Chel M – Back in early 2004, the ULSG (website http://www.ulsg.org ) filed a civil declaratory lawsuit against the USFSPA, naming then-SecDef Rumsfeld as the only defendant. The case went to the US Supreme Court which rejected it without comment in June 2007. I was one of the 58 main plaintiffs – if you’d like to read the case’s 3 year travel through the federal court system – send me an email and I’ll give the “click-on’s” to read the documents FREE !

    • Chel M.

      Ok, but how do I send you an email.

      • USFSPA Killer

        Here’s the “click-on’s” –

        Visit http://www.ulsg.org
        Click on “Legislation” at the top of the home page (Blue Bar)
        Scroll down to “Adkins vs. Rumsfeld”
        Click on “Read More” Then click on the documents titles to open them.

        • Chel M.

          Thank you

        • Enjoyin’ the fights

          The ULSG website is gone – anybody know why ?

  • USFSPA Killer

    Kate – Thanks for your discriminatory action of cutting me off from freely posting THE TRUTH ! ! ! !

    • Kate

      USFSPA Killer, I have no idea what you are talking about. You are freely posting your opinions here.

  • Strapped

    Why does the Former Spouse receive part of my retirement after she has remarried? If a military widow remarries she looses her money, why not the Former Spouse when they remarry?

    • Kate

      The division of any assets incident to divorce can not be conditional on the marital status of either party. It would cause chaos! Can you imagine a country full of people transferring back and forth houses, cars, savings accounts, and retirement accounts if they remarry?

      Military widows and widowers currently lose their SBP annuity if they remarry before age 55, but most people consider that a flaw in the existing law and there is significant push to have that changed. In addition, widows and widowers who remarry are eligible to have their SBP coverage reinstated if the subsequent marriage ends in death or divorce.

  • fancy

    What happens if the decree says the ex spouse is supposed to get SBP but the retiree names his second wife for the SBP?

    • Kate

      If the former spouse properly filed the decree with the Defense Finance and Accounting Service (DFAS) within the 1 year deadline, the retiree would be unable to name his second wife for SBP.

      If the paperwork was not properly filed within 1 year of the divorce, DFAS is unable to enforce the provisions of the divorce decree.

      I have no idea whether a court would re-open a previously agree-to propertly settlement due to the failure to file the correct paperwork. I suppose you could ask a lawyer who knows the local legal scene for their opinion.

      • USFSPA Killer

        A DD Form 2293 application REQUIRES a CURRENT – LESS THAN 90 DAY OLD court order attached to it otherwise DFAS will refruse it. The “1 year condition” is available only to get a “deemed election” to garnish retired pay to pay SBP premiums to cover the former spouse if the original decree didn’t include an SBP coverage order which can be an original order modification – again, within one year of the original order which didn’t order SBP coverage.

      • fancy

        The former spouse did not file the decree with the DFAS at all. DFAS has a copy now but the former spouse never filed a decree.

        • guest

          If you aren’t the service member and are the former spouse, it was up to you to file the decree within 1 year, not him. If you did not then DFAS can’t enforce the decree and he can probably name his second wife as a recipient.

          • USFSPA Killer

            DFAS would NOT have accepted the decree if it was filed AFTER 90 days AFTER it’s dated by the Court Clerk.

  • Mike

    I retired in 1979 after 21 years in the USN.
    In 1989 after being married 29 years, my (then) wife and I divorced while living in CA, and she receives half of my retired pay.
    If she predeceases me, are there any procedures in place that would allow me to apply for the monthly amount that she’s been receiving and have that amount reinstated into my retired pay?

    • USFSPA Killer

      If and when she predeceases you, you should notify DFAS-Cleveland by phone. They will suspend her account as of her date of death and will terminate it upon their receipt of a death certificate or newspaper clipping. Your previously garnisheed amount will be stopped and you will get your full as such otherwise entitled military retired pay effective from her date of death onward. There is nothing else to do.

  • Beverly

    my husband got his divorce and she received his SBP which I have no problem with. But almost 2 yrs ago she passed now we are trying to get this changed to put me and child on it. We found out that the word Former Spouse can’t be change. What is up with that…she is gone and now he can’t change it. They told him he had to wait for open enrollment so when do they do that? I heard they don’t do it very often. We have been together 16 years and I’m worried that when he passes hopefully not but if that happens I will loose his retirement and health insurance etc. I didn’t understand why that is? Can you explain that.

    • USFSPA Killer

      Bev – I’m not a lawyer and this isn’t legal advice (“disclaimer”) – But, if he contacts the court that issued his divorce and asked for a clairfying order removing his ex (aka former spouse) furnishing a copy of her death certificate, they might be willing to provide that modification which can be sent to DFAS-Cleveland. If DFAS accepts the modification, and you can be the new beneficiary, should he pass before you, then you will get only a percentage of his retired pay, depending on the level of retired pay benefit he chose to pay for from his current retired pay. Your spousal benefits as the wife or widow of a military retiree will not change because of his passing. After he passes, you will then be classified as an “Unremarried widow” with exactly the same benefits you now have. Actually, SBP is a expensive investment for a small death benefit – commercial life insurance is usually cheaper for a greater benefit.

      • Kate

        USFSPA killer, have you priced a lifetime annuity with cost of living increases? I would love to see where you can find comparable coverage for a better price – please let me know!

        • USFSPA Killer

          Yep, – that’s why I chose a military career! No money out-of-pocket to purchase it and I got paid while earning it ! lol !

  • Kay

    I am a 20/20/20 un-remarried former spouse. A few years after the service member’s retirement, we divorced. Per the dissolution decree, I was to receive half of the retirement pay. I have long suspected that I did not receive the actual half which the court awarded to me. I searched for a way to verify the payment, but the Defense Finance & Accounting Service (DFAS) advised they could not release that information to me. In Oct. 2014 the service member died, so I no longer receive a portion of the retirement pay. Please advise if and how I can verify that I actually received half of the retirement pay. If I did not receive the correct amount, do I have any recourse–e.g. to make a claim against the deceased service member’s estate or against
    DFAS? Could the service member have had federal income-tax-withholding payments or any other deductions taken from the retirement pay prior to dividing it in half? I am grateful for any help you can offer.

    • USFSPA Killer

      Yes, the USFSPA specifically states “disposable” retired pay. 10 USC 1408(a)(4) sub-sub paras(A),(B),(C) and (D) specify what deductions are legally made from the retiree’s GROSS retired pay before the former spouse portion is garnisheed from the remaining “disposable” retired pay. Briefly, these are (A) recoupment of previous overpayments; (B) courts-martial fines or Title 5 waivers (civilian pay waiver for civilian disabilty comp) or Title 38 waivers (military retired pay waiver for VA disabilty comp); (C) Title 61 medically retired payments from member’s service with less than 20 years; (D) SBP premiums. On Feb 4, 1991, federal income tax was removed from being an allowable deduction before former spouse computation. You didn’t mention if he was paying SBP premiums for you to receive a certain portion of his retired pay until you pass away.

      • Kay

        Thank you so much for clearing up my apparently-unfounded suspicions. We were divorced after 1991, so IRS payments would not have been an issue. Sub-sub paragraphs A through C would not have applied. And the retiree thought SBP premiums were a poor method of fund management, so rejected that option. I am grateful to you for putting my mind at ease.

    • Guest contributor

      AK2 – Your comment is distasteful and not beneficial.

  • cws

    My thoughts on FSPA – It was established as a way to protect SPOUSES, not the service member. I truly believe it could be a wonderful “law” unfortunately as with most of these “acts” there are loop holes not closed or to much ambiguity. A former spouse SHOULD NOT be allowed to collect retirement funds is said former spouse remarries another service member. (A person could do this numerous times and NEVER have to work.) I wish Congress would examine this act and refine it’s intent…

    • Kate

      I’m curious about your logic. If a divorce settlement says that the house should be sold and one party gets a certain portion of the proceedsk should, should that party not be allowed to get any proceeds from a house in a subsequent divorce? If that seems ridiculous, how does it differ from this question.

      There are always people who are going to marry multiple times and make money off of it. I suspect that it is less likely with military members because a smart settlement only apportions the portion of the retirement attributable to the time of marriage. No one is realistically going to accumulate multiple settlements of a large size.

      There aren’t any loopholes in the FSPA. All it says is that the state courts can decide, just as state courts can decide about civilian pensions. It isn’t the federal government’s job to tell the state courts HOW to decide.

      • USFSPA Killer

        The USFSPA DIDN’T tell the states HOW to decide – it LET them decide HOW to divide based on each divorce court’s domestic relations laws. There are cases on file where there was – no – nada – NONE “overlap” of marriage and service and a Kangaroo court judge ordered the retiree to “put a check in the mail” to their former ex-broomrider !

      • guest

        Kate, there is a HUGE freaking difference between selling a house and splitting the proceeds and paying someone monthly for 40 plus year after they “served” for 5 or 10 in your marriage, especially when in many cases the servicemember was footing most of the household bills at that time. If you were a SAHM, you “earned” your pay and your spouse gave you food, shelter, safety, cars, vacations, spending money, utilities etc. You’ve ALREADY been paid for your “services rendered” ….they shouldn’t be stuck with a noose around their neck for 40 odd years, particularly if the former spouse remarries.

        You vehemently claim you can put stipulations in your divorce decree etc. Do you know how many times I’ve actually heard that work successfully? Once…Once in 16 years, and that’s because the guy filed the divorce in Puerto Rico where he was from…his long estranged wife tried for 3 years to fight the legality of that decision for the sole purpose of the pension and she lost. Every. Other. Time. the civilian judge has typically handed over the pension to the former spouse, regardless of their lying, cheating, spendy, slothful ways in some some of the cases.

        It’s fine and dandy to CLAIM these things can happen, it’s an entirely other thing to educate civilian judges that it doesn’t have to be permanent when they probably aren’t educated in that fact.

        • Kate

          You are absolutely correct that judges don’t understand USFSPA. Many lawyers don’t understand it, either. That’s why I strongly encourage divorcing couples, military or civilian, to avoid having a judge decide their case. I know numerous people who have successfully negotiated their own property settlement agreement, often using the services of a mediator to find a solution that is acceptable to both parties.

          People who negotiate their own property settlements have a much higher reported rate of satisfaction with the results. People who allow their cases to be decided by a judge are at the mercy of an individual who knows very little about the two parties, their marriage, and often, as you state, the nature of military pay and benefits. It’s not surprising that the results aren’t always great.

          • USFSPA Killer

            Actually, judges and lawyers understand the USFSPA EXTREMELY WELL ! – Many of them are in cahoots – a.k.a. – “cronies” that protect a lifetime stream of income to feed their “Club Med” retirement accounts. Have you noticed that when you contact a federal legislator about repealing or reforming the USFSPA, you get the same canned answer – “When this comes up, I’ll keep your views in mind” – BUT IT NEVER COMES UP ! – That’s becasue the Bar Associations pressure legislators to kill any attempts on threats to their guareanteed incomes. There are cases on file where lawyers have signed contingency fee contracts with potential former spouses to get long-term payments depending on the amount they can get from taking the retiree to the cleaners ! These contingency fee contracts are UNETHICAL !

          • guest

            OK…now you’ve just gotten a first class ride on the crazy train. And where is your proof of these contingency contracts? And if you have said proof, why have you not presented them to the Bar to have said lawyers disbarred, or brought this “truth” to the media’s attention?

          • USFSPA Killer

            The contingency contracts are involved in current litigation – ‘Nuff said.

          • guest

            And that’s stopped a release to public media why? Hell media should have been the first stop

          • USFSPA Killer

            When the current litigation is closed, depending on the decision, the a .pdf copy of the contingency contracts may be posted on this blog.

        • USFSPA Killer

          Guest – Wonderful come-back to the brain-dead vitriol that’s out in the public sector about military retired PAY – again, emphasising that retired PAY is current PAY and N-O-T nor ever has been a “pension” ! Fact – Puerto Rico is the ONLY governmentality under US Federal Law that will NOT divide military retired PAY but only for its natural born citizens who retire from any of the 7 (seven) Uniformed Services. Most military couples divorcing have only the usual word-of-mouth jibberish about military retired pay that they heard from another emotional “friend” source who has taken sides for/against the couple breaking up. The BEST reference for FULL Military divorce info is found at http://www.americanretirees.org and order their book – “Divorce And The Military”. It isn’t or can’t be legal advice, but it does best what it can do – explain the federal law and let the readers make their own decisions.

          • guest

            It’s a pension dude….get over it. I’ll call it “pay for reduced services” when you can show me proof of them non voluntarily recalling an 80 year old to fight in a recent war. Or again when you can show me someone that is retired, receiving that pension, and going into an office every few days and actually working for said reduced pay (and not as a new hire, volunteer, contractor, or any other capacity that would offer them a second paycheck)

            Everyone from Congress, to the President, to the Secretary of Defense have referred to them as Pensions at some point in time. Stop trying to use semantics to further your cause, you will only harm your point and alienate people that may actually agree with you. I’m on your side (and I’m a spouse) that I think this law is absolute BS…however, you are so nasty about it and trying to define it as reduced pay, that I will never be able to take your personal crusade seriously. When you accept that 99.9% of people think of it as a pension and stop trying to prove everyone wrong…you might actually find yourself more supporters ;-)

          • USFSPA Killer

            YOU can call it a “pension” – BUT – the fact that it’s been called a “pension” is exactly how the USFSPA was created – because everybody had been brainwashed into accepting it as being a pension. It AIN’T “semantics” – IT’S FEDERAL LAW – READ IT and JOIN THE REAL WORLD ! I really don’t care if you take my side – I’m on the side that says military retired pay is CURRENT INCOME ! Tell you what – show me in the USFSPA where it uses the word “pension” – then I’ll shut up !

          • guest

            eeeeexcept it’s not. No matter how much you want to believe it is. You do also realize that if it WAS readily known as regular pay, that spouses could STILL go after it right? pay or pension, however you look at it, a spouse can STILL receive half of it. Again, you are arguing semantics and the semantics aren’t the issue, the law that allows payments for LIFE (whether it be pay or pension) is the issue.

          • USFSPA Killer

            Exactly, the USFSPA law IS “the” issue – the 97th Congress screwed retirees ! As soon as the Kangaroo Courts understand that retired pay is current income, and NOT a “pension” (because the USFSPA never does call retired pay a “pension”) it then can and should be used to figure “spousal support” a.k.a. “alimony” – which has definite termination point in written law.

    • USFSPA Killer

      cws – You are dead on target about the open loop holes and ambiguity ! The 97th Congress (1981-1982) pased the USFSPA under the table damn well knowing that if they did it in the open, it would have never passed ! There are documented cases of a retired military member paying multiple former spouses and also cases of a former spouse collecting multiple USFSPA payments! The USFSPA specifically discusses multiple claims by a “first come, first served” succession. This umbriage of insults to retired military must stop !

  • Gloria

    My husband is 90 percent disabled and his ex-spouse takes half of his retirement which she is entitled to. My husband could claim 100 percent but would his ex loose her half of her retirement if he claims 100 percent disabled, dont really understand how this works cuz we dont want to mess with her half or we be back in court

    • USFSPA Killer

      Your husband’s ex-spouse is NOT “entitled” to any of his retired pay – she gets it becasue a divorce court has ordered a divison of his retired pay as jointly earned marital property under the USFSPA ! This is NOT legal advice nor am I a lawyer, but he should claim 100% because he will get FULL VA disability and of course his ex will get more – so his “more” will still be much more than his ex’s “more”. You won’t be “back in court”, “cuz” his ex won’t get less, she’ll get more but not as much as his “more” !

  • USAFSP Killer

    Here’s FEDERAL LAW stating that MILTARY RETIRED PAY is CURRENT INCOME and NOT a “pension” –

    Public Law 79-190, Section 4 – “The military pay that which is received after being transferred into a retired reserve status is a reduced monthly income, paid for a continued military obligation”.

    Now anyone care to dispute FEDERAL LAW ? ! ? !

    • Kate

      Dude, no one is disuputing it. We all agree with you that is the name. We just disagree that it is the reality.

      • USFSPA Killer

        Then if more retirees got off their butts and legally started a USFSPA repeal movement, the screwjob reality would go away. If and when the “new” retirement program comes into effect, it will NOT help current retirees one iota. These 250,000 still need to have the USFSPA repealed.

      • USFSPA Killer

        Trying to successfully disagree with reality is just like rearranging the deck chairs on the TITANIC ! ! ! !

  • Carolyn

    Is the second wife of a military retiree entitled to any benefits after 10 years of marriage then divorce?

    • USFSPA Killer

      The USFSPA does address multiple court orders at 10 USC 1408 (e) which basicly says – “first come, first served” as far as continuing theft of the retiree’s retired pay. Of course if there is already a first Kangaroo court partitioning, the remaining “disposable” pay may be quite small. As only 20/20/20 former spouses get other benefits, then no other benefits would be available to a 10 year overlap.

  • mary

    can a 100% DVA also with 50%military retirement get out of paying any of his retirement to his wife thur divorce by waiving all his military retirement to recieved his 100% VA pay and also not have to pay child support this was combat related

    • USFSPA Killer

      Not legal advice, nor am I a lawyer, but, the divorce settlement should specifically in exact wording exclude any and all military retired pay to prevent it from ever being divided. To avoid paying child support only makes one a DEAD-BEAT PARENT !

  • mary

    also there was an domestic violence conviction SO wife is afraid to fight him

    • USFSPA Killer

      The USFSPA at 10 USC 1408(h) addresses military retiree domestic violence convictions. This is called the AMDA – Abused Military Dependants Act – and in short, life-time termination of the retiree’s retired pay and ALL benefits and grants ALL the retired pay and benefits to the victim dependant, within the 20/20/20 or 20/20/15 provisions. The retired pay and benefits continue as long as the former spouse does NOT remarry, but if the former spouse’s remarriage ends, then the benefits will restart and continue as long as the former spouse doesn’t remarry again – this is one of the MANY unconstutionalities of the USFSPA – providing only a single specific event which terminates USFSPA payments, other than the death of the military retiree or the former spouse.

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  • exdonemewrong

    This ACT is a travesty to retired service members, why is there no legislation proposal to INVOKE CHANGE?

    FSPA is abuse of PERIOD!!

    • USFSPA Killer

      The advisor associations make $ BILLIONS off of military divorces – they have legislative “PAC’s” that fund reelection campaigns – it’s CRONYISM at it’s best ! Whenever legislation is submited to repeal/reform the USFSPA, it gets “circular filed”! There was a lawsuit filed back in 2004 that went to the US Supreme Court but the 9 black robes refused to hear the case in 2007. Why? – we’ll never know ! But 55% of the voters are female ! You guess !

  • Anonymous guest50

    I am an ex-spouse, married 20+ years, and I have been receiving 50% of my ex’s military retirement since our divorce in 2011. The retirement division order states that I shall receive this pay effective from the date of the divorce and continue each month thereafter until the death of either party. I am planning to remarry next year, and want to be sure that I will not lose my portion of the retirement pay when I remarry. Kate, do you know the answer to this question? If not, where can I go to get a definite and accurate answer?

    • Kate

      Anonymous, when military retirement pay is divided as marital property, that division is not affected by remarriage (of either party.)

    • USFSPA Killer

      The USFSPA is found at 10 USC 1408 – check it out !

  • Anonymous guest50

    Kate,
    That is great news to hear! My ex-spouse told me at the time of the divorce that I could never remarry or I would lose all my benefits- including my portion of the retirement pay. Who is an official person that can tell me what you said, or who can tell him what you told me? Do you think I need to get that in writing from an attorney? Or maybe DFAS?

    • Guest contributor

      Your ex-spouse is playing the “smoke and mirrors card” just to keep control over you. It sounds like he(she) never wanted the divorce and still wants to get back with you. You’d need to expand upon the details of your marriage and service time overlap – only 20/20/20 former spouse can carry benefits after divorce. USFSPA property divison of retired pay is for the life of both spouses and has no automatic termination provison other than death.

      • Anonymous guest50

        I am 20/20/20 former spouse, and aware I will lose Tricare and alimony, but really hope the retirement pay will stay with me. I’m not planning to work too many more years and have no retirement plan of my own worth much due to changing jobs every 2-3 years with his PCSing.

        • guest

          Actually you need to check your decree and make sure you didn’t agree to wording that the pension payments are to stop upon remarriage. If it’s in there, then yes, you can loose it upon remarriage.

          • Anonymous guest50

            Definitely does not say that. Stated effective from date of divorce and continue each month thereafter until the death of either party. That’s all it says.

          • USFSPA Killer

            Guest – Military retired PAY is N-O-T a “pension” so STOP using that term RIGHT NOW ! ! ! ! !

          • guest

            Uuummmm nope..don’t think I will. See, that’s the great thing about the country…I can call it anything I please because despite what games you like to play with semantics it IS A PENSION. pension. Pension. PENSION….for it’s a jolly good pension, for it’s a jolly good peeeennnnsioooon, which nobody can deny.

            If you have such a problem with people calling it a pension, maybe you should contact your congressman/woman and try to get a law passed that makes it illegal to call it such (considering most of them and several POTUS have publicly called it a pension). You are SUCH a proponent of congressional propositions I’m sure everyone here would LOVE you to show them that they actually work in matters as trivial as this.

          • USFSPA Killer

            Time out – Please show me in current longstanding legislated federal law where a military member and/or the federal gov’t contributes to a “by-name” tangible fund that can be withdrawn at anytime by the member during the member’s service time ! When you do, I’ll very gladly start calling MRP a “pension”, but until then, it’s REDUCED CURRENT P-A-Y ! ! ! Just because it’s been incorrectly known for so long does NOT make it “right” ! (Only ignorants refuse to accept truth!)

          • Kate

            You are completely missing the point. No “pension” has “by-name” tangible funds that can be withdrawn the beneficiary. What you are asking to be shown would not be called a pension, it would be called a retirement plan.

            Pensions, by definition, do not have by-name tangible funds.

          • Kate

            USFSPA Killer, please stop using all caps and directive language towards other readers. It is impolite and does not further the conversation.

          • USFSPA Killer

            I don’t use “all caps” !

  • Guest

    I am a former spouse. I receive a small percent of my husband’s AF retirement pay. Our divorce papers state that my percent is to be figured on the net amount after all taxes are taken out. The IRS sends me a 1099 anyway. Am I obligated to pay taxes on the amount sent to me?

    • Watchin’ the fun

      Back in 1990, the 1991 NDAA eliminated the deduction of taxes before figuring the percentage of the former spouse payment. DFAS must ignore that provision in your divorce deree because DFAS would be violating federal law if they followed that part of your court order, which they can’t do. It is surprising that DFAS accepted your court order without sending it back to you to have that provision eliminated. Yes, as your payments from your former military member’s retired pay are taken BEFORE DFAS figures the income tax on HIS remaining portion, after your payment is deducted from his disposable retired pay, he is fully liberated from paying any tax on your portion which DFAS sends to you. You are FULLY LIABLE to claim that 1099-R amount on your federal tax return (and state if applicable) as you must pay any legal income tax on the full amount you receive from his disposable retired pay from DFAS. (PS – not legal or accounting advice, nor am I a lawyer or accountant!)

      • Anonymous guest50

        If you get your portion paid directly to you from DFAS, you can set it up with them how much you want withheld from each payment for federal taxes. They will withhold some automatically, but I increased my withholding amount to cover taxes on alimony since my alimony check doesn’t have anything withheld.

  • Amliss

    I am currently getting divorce from a military man. We have been married for over 27 years and he said because he retired a little early do to been injury overseas I do not have any rights to anything. I’m very confused on how to handle this and the lawyers I have talk to do not seen to be knowledgeable of this subject. I have my own business and everything close it down to take care of him for 5 years and now he is fine and decided to move on and left me penniless. I went back to school and he said he is talking my education benefits and health insurance too. This is very unfair. I feel like I have no where to go. Any suggestions?

    • Kate

      Amliss, I suggest that you get a very good lawyer who understands the nuances of military divorce. The Military Spouse JD Network is a professional organization of military spouses who are also lawyers. They might be able to help you find someone http://www.msjdn.org/

      You can negotiate anything in your divorce if you have a strong will and good legal representation. If he retired prior to 20 years of service, you will not be eligible for military-provided “20/20/20” benefits such as health care and base privileges. However, you can ask for a division of military property, division of other assets, to retain your Survivor Benefit Plan benefits, to retain the transferred GI benefits, etc. I can’t promise that you will get everything that you want because it is a negotiation between both parties, but you have to start somewhere.

      Good luck to you!

  • Tmm

    My ex is getting VA 40% of disability, and no court order to enforce childsupport or allimony, we did not get anything even I married almost 14 years and he served 17 years military, yes he was medical retired. I was very upsetting even GI bill is voluntary to transfer to kids, he did not do for kids, we all knew he never back to school. I guess my lawyer was lacking military knowledge. He did not get decent job and try making me pay for spouse support and childsupport . I am full time job and taking care of kids all that time. but all done ,however when I read those site, it is complicated and still I need to pay attention of it. Becasue he is not follow parenting, he is 10 % of custody, I am 90% of custody. What else I can do it ? Even he said, ” I did not notify to VA my divorce, …” I guess if he notify to them his status, his VA disability portion will be less amount.

  • m cars

    I don’t know where to get the right answers. my husband and I have been married for 42 years and he was in Viet nam and is currently getting an AGENT ORANGE check. I would like to know if he dies when I continue to get his benefits and agent orange check> does any one know where I can get some answers? real and true answers?? thanks for your time

    • Kate

      Ma’am, if your husband is currently receiving disability compensation from the VA for medical issues related to exposure to Agent Orange, then you may be eligible to receive Dependency and Indemnity Compensation (DIC) payments if he predeceases you and the cause of death is related to his Agent Orange exposure. You may benefit from some specialized legal guidance to ensure that his VA records are in good order and properly document his exposure to Agent Orange and the associated medical symptoms that he is experiencing.

      DIC is available to surviving spouses if the veteran died as the result of a condition that is presumed to be caused by Agent Orange exposure, and there is sufficient documentation that the veteran was exposed to Agent Orange.

      There is no such thing as an “Agent Orange” check. I suspect you are referring to a VA disability compensation check for conditions related to Agent Orange exposure. If this is true, then it would seem sensible that your husband’s medical file contains adequate documentation of his Agent Orange exposure. However, it is rarely safe to assume anything, especially when dealing with the VA. Make sure that you have ample documentation in case you do file for DIC and need to substantiate your claim.

      I hope this answers your question. If you do an internet search on Disability and Indemnity Compensation and Agent Orange, there are many resources that can better help you understand the situation.

      Good luck to you!

  • Evelyn

    I am a former spouse with 20/20/20 benefits.I was receiving $150 mo.until he died in 1995.i am a retired federal employee for 11 yrs.I was told I can not draw anything of his because of they called double dipping.has the law changed any since.my retirement annuity is small.

    • Guest Contributor

      Since your ex is dead, his retired pay stopped becasue the gov’t doesn’t pay dead people (even though there are a lot of them still showing up for work).Unless he paid for SBP, you can’t get any more from his retired pay. You can always go back to work part time !

  • Guest Contributor

    Can somebody sort out this mumbo-jumbo emotional vitriol and put it in good English ?

  • Louisiana

    I would love to know how is that a Military Service member, who is “Court Ordered” to pay his former spouse 50% of his military Retirement, and then go back and raise his disability, and decrease her retirement pay, after being married for 19 1/2 years, and can continue to do this until she has no Military Retirement at all. Where is the justice in that?