By Angela Foy
Attorney, Cordell & Cordell
In most divorces involving military service members, military retired pay is the largest asset subject to division. The military has many rules and guidelines regarding its retirement including when someone may receive it. The answers vary depending on your years of service.
As military members are probably aware, in order to qualify for retired pay benefits, you must serve a minimum of 20 years of credible service. Military pay is awarded to a former spouse only if, as, and when the service member would receive it.
The Uniformed Services Former Spouses Protection Act (USFSPA, hereinafter “the Act”) was passed by Congress in 1982 to provide a State court with the authority to divide retired pay as marital property between spouses. The Act reiterates that if a military member is divorcing while on active duty, the requirements of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) must be met before an award bifurcating military retired pay can be enforced.
The Act does not restrict the amount or percentage that the court may award to the former spouse. However, the Defense Finance and Accounting Service (DFAS) will not directly pay the former spouse more than 50% of disposable retired pay. The military member would be responsible for paying anything over 50% if that is ordered.
As a military member, it is almost always to your advantage to specify the dollar amount. By using a dollar amount, the former spouse is not afforded a cost of living adjustment, so you would receive that portion added to your remaining portion of retired pay.
The Defense Finance and Accounting Service (DFAS) will not make direct payment of retired military pay to a former spouse if the parties have not been married for at least 10 years, which overlaps 10 years of credible military service. The parties, with the help of the State’s local rules and guidelines, would have to work out how the payments are made if the parties do not meet these requirements.
In most divorces involving military service members, military retired pay is the largest asset subject to division. You should contact an attorney and a skilled financial advisor to explore your options.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.