Why The USFSPA Is Unfair To Retired Veterans

USFSPAThe Uniformed Services Former Spouses Protection Act was passed more than 30 years ago and has faced criticism by numerous veterans organizations ever since. The law routinely blindsides divorced servicemen and women who, after divorce, suddenly find huge portions of the retirement funds they’ve earned sent to their former spouse.

The USFSPA was enacted in 1982 as a means to protect divorcing spouses of military personnel. The law’s intentions were, and still are, good.

Military spouses make enormous personal sacrifices as they often forgo their own careers to travel with their husband, or wife, around the globe while on deployment. They often never put in enough time at one company to earn a pension or build any sort of retirement fund.

Even as employment opportunities for women have dramatically increased over the past few decades, some sort of financial safety net is still necessary.

However, the USFSPA, which treats a veteran’s retirement pay as community property, goes too far and often ruins the financial stability of thousands of American veterans.

Military retirement benefits are considered community property.

Military members are eligible for retired pay benefits after 20 years of service.

Prior to 1981, courts disagreed on whether these retirement benefits would be considered separate or community property. After the passage of the USFSPA, they were deemed community property, and thus that money is now eligible for division during a divorce.

In many states, the statutory presumption is that all marital property will be divided equally between each party. The court can adjust that division based on a number of factors, including the length of the marriage, the age and health of each party, etc.

How the USFSPA works.

The USFSPA doesn’t guarantee a former spouse a portion of the military member’s retired pay, but rather gives state courts the right to distribute those benefits.

The USFSPA does not restrict the amount or percentage that the court may award to the former spouse. However, the Defense Finance and Accounting Service will not directly pay the former spouse more than 50% of the benefits. If ordered, the military member would be responsible for paying anything over that as if the two were civilians.

The USFSPA does not preclude the award of other support, such as alimony or child support.

The marriage only needs to have lasted at least 10 years during which the member performed at least 10 years of credible service for benefits to be subject to distribution (even though the military member is required to serve 20 years in order to receive those benefits in the first place).

The USFSPA gives equal weight to contributions.

The USFSPA is littered with fairness issues.

For one, it considers the contributions to national security made by a military spouse equal to those of an actual military member.

As stated before, the sacrifices military spouses make are undeniably selfless, and even heroic, but should they be given as much credence as a soldier risking their life day after day on the frontlines?

Soldiers often face years of incredible hardship that results in severe physical, psychological and emotional damage. To say the spouse’s service was equal to that is, to say the least, a stretch.

Furthermore, military retirement is actually a continuation of active pay on a reduced basis. At any point, the military member could be recalled back into employment under penalty of law – a prospect the former spouse never faces.

Military retirees have no property rights to their retirement, but their ex-spouses do.

Perhaps most confounding with the USFSPA is how it grants former spouses more protection than the actual military member.

A military member receiving retirement pay must always remain in compliance with the Uniform Code of Military Justice. They could face restrictions on employment and foreign travel or risk losing their benefits. If they are ever incarcerated, they could see their benefits reduced or terminated.

For a military member, these obligations persist for life.

Not so much for a former spouse. They can live wherever they want and commit numerous crimes without risk of losing their benefits, even though their service to the military and the military member end at divorce.

Moreover, because of the USFSPA, a former spouse can even remarry and still retain their right to their ex’s military retirement since the retired pay is considered marital property. This means that funds that Congress has appropriated as elements of the U.S. military compensation system are frequently shared by non-military personnel.

Other government and survivor benefits routinely terminate when former spouses remarry. Benefits paid to the ex-spouses of CIA personnel end upon remarriage prior to age 55 or 60.

The amount of retired pay a former spouse receives is based on the military member’s pay at retirement.

The award of retired pay that a former spouse receives is based on the military retiree’s rank or pay grade when they retired, not at the time of divorce.

The justification for this is that the spousal influence extends for the life of an entire career. So if a Navy officer is a Commander upon divorce and advances to Rear Admiral over the next 15 years, the assumption is that the ex-spouse contributed to the officer’s career advancement.

Again, this seems like a hard case to make.

No formula leads to wide discrepancies.

Finally, another fatal flaw of the USFSPA is that the law fails to lay out any sort of formula to determine a proper allocation of the benefits other than to say the spouse may be allocated “up to 50 percent.”

So this federal law is left open to interpretation to local courts and jurisdictions. This leads to wide discrepancies from state to state and even county to county in how the law is implemented.

We love to embrace our patriotism in the United States and brag about how much we “support our troops.” And yet this flawed, outdated law persists, denying many of our bravest men and women of the benefits they’ve earned by making some of the most difficult sacrifices imaginable.

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Shawn Garrison is an Online Editor for Lexicon, focusing on subjects related to the legal services of customers, Cordell & Cordell and Cordell & Cordell UK. He has written countless pieces dealing with the unique child custody and divorce issues that men and fathers face. Through his work on CordellCordell.com, CordellCordell.co.uk, and DadsDivorce.com, Mr. Garrison has become an authority on the complexities of the legal experience and was a content creator for the YouTube series “Dad’s Divorce Live” and additional videos on both the Dad’s Divorce and Cordell & Cordell YouTube channels. Mr. Garrison has managed the sites of these customers, and fostered the creation of several of their features, including the Cordell & Cordell attorney and office pages, the Dad’s Divorce Newsletter, and the Cordell & Cordell newsletter.

53 comments on “Why The USFSPA Is Unfair To Retired Veterans

    A petition sounds great! Does anyone know of any progress on that topic? I petitioned for a contested divorce in 2005. I had to force it because my ex wife was waiting for the 10 year marriage mark to occur. We had married in 1997 but separated in 2000. I joined the military in 1997. Divorce finalized in 2005. Got out the military in 2005. In 2005 the State of Texas courts handed her (ex wife) a percentage of my military retirement pay (court order) if/ and when I retired in the future. I agreed to it knowing I was going to ETS in 2005. In 2006, I rejoined and retired. My ex wife is now a part of my future for the rest of our natural lives by law. By Federal law the 10/ 10 rule does not apply to us. According to the State of Texas court order I owe her as if though we were married for 10 years. Flawed legal system. From 1997-1999, She cheated on me, abondoned my 1 year old daughter a couple times, disappeared sporadically to do illegal drugs, and never worked except one part time job for 2 months. What did she contribute to the marriage and what do I owe her? She abondoned my 1 year old daughter to party and smoke. This all happened while I was at NTC and JRTC month long training in a different State and went home to pick up all the pieces. She threatened that if I reported her I would never find my daughter again while I went to my next training event. She knew some sketchy people in her old town (viable threat). How or why should I pay her my retainer money when I follow the law, UCMJ, and the Lord. This is ruining my current marriage everyday. I cannot escape my ex wife since my retainer pay goes to her. How is it fair? End this Act!

    If a spouse is awarded “pension” benefits due to a divorce, say after 10-12 years of service, but the member opts to leave the service what happens then? It seems as if the spouse can still come after the member based on other rulings where disability reduced the amount given to the ex but, then still had to be paid by the member as a “make up”.

    Abolish the Former Spouse Protection ACT, or at least change or amend it with limitations. This is a long over due Congressional Oversight that is needed. Former Spouses should not be entitled to this for the rest of their lives. You will need a 100,000 or more signature petition for this to wake up Washington

    The Former Spouse Protection Act should have limitations. If the former spouse re marries the payments should immediately stop, no IFS, ANDS, or BUTS. Limit the payments to the total number years they were married during the military career. After that, all FSPA payments stop immediately and returned to the retiree’s pay. I have written to Senators, Congressman, and even the US President. But no one has listen. The only way someone in Washington, DC will listen; is to forward a 100,000 or more signature petition to them and maybe they will take a look at this and change it to be more fair. It is not right or fair for a former spouse to continue drawing these payments for life, especially after that spouse has earned their own job retirement pension and their own social security pay.

    Retired from USAF 1981 following 20 years active duty. 1982 Congress passes new law, USFSPA 1982. Divorce 1990, State of Ct A awards xwife 50% Of pension. Twenty nine years later, fighting cancer, I struggle each month to keep my home. Thanks Congress, always knew I could count on you to keep your word.

    I’m a former spouse hoping to collect 50% of my ex’s retirement soon. He retired & didn’t tell me! It’s clearly documented I’m entitled to half of his retirement. He cheated on me & his lover attended our divorce proceedings very pregnant! And he was still married to me! I put over 20 years of blood, sweat & tears into his career. And he trades me in like a used car! I agree situations differ but I deserve mine!

    You are not entitled!!!! You are eligible. Huge difference but you former spouses believe you are entitled. What part did you play in him finding a new mate? It takes two to make a marriage and two to break it up. Hardly anyone is a serial cheater. When infidelity occurs there is usually a good reason. But, all you want to do is punish him and be entitled instead of taking a step back and realizing that you were 50% responsible for him seeking affections elsewhere. No matter what he did you still did not earn one dime of his retainer pay. Oh, you will get it as judges don’t care who did what and it’s just divided because it’s so much easier than trying to figure out what really went wrong in the marriage. Yes, you get half but she got the man that you couldn’t keep. And, she knows that he is worth every penny he will have to pay you. I hope they have a wonderful life!

    His cheating has nothing to do anything. What you want is revenge for unjust circumstances and what is sad men left women for a lot less than this! This man worked his butt off through his military career, while you stayed at home. As far as I’m concerned, you’re not entitled to anything and got a vacation. You sound like the free loader you are and want your golden uterus to pay for something that was put forth by someone else. No one stopped you from working nor contributing to a individual retirement plan. You were the person who made yourself into such a situation that you became dependent on one person. You sound like my husband’s ex-wife. We are all used something’s at some point; cry me a river. It’s the 21st century, women work. There is no reason why you shouldn’t be any different unless you’re disabled. And if you wanted to be a home maker and raise your kids, that’s between you and your ex.

    From another female, a female service member, wife and mother, get a job and move on! You don’t deserve this along with anything else unless you WANT to wear the uniform, but you didn’t.

    If you’re divorced, it’s none of your business whether or not you retired. You did not put forth any blood, sweat or tears into his career. I guarantee it. You did not have to sacrifice anything and suffer the hardships as he. What is it you think you did for his career?

    What he earned while you were married was not enough for you?

    Cheating is wrong and I do not condone that, but it is not morally yours to take from him.

    Boo-hoo. Sorry that he cheated on you, that sucks, but get over it you money-grubbing sociopath.

    You’re not entitled to anything.

    The passage of this law was a vast miscarriage of Justice promoted by left-wing feminist’s, in time period where, maybe, just maybe, this act had some semblance of a purpose. However now the dynamics and equitability within our legal structure has become much more balanced, and these protections are now and abuse.

    My husband is a Retired 1st Sgt of the United States Marine Corps. When his daughter was 14, he gained 100% custody of her. His former spouse was ordered to pay him child support. She did not pay so, the Court petitioned DFAS for wage garnishment of his former spouse’s military retirement pay (MRP). Not until the third attempt did my husband learn that his former spouse’s entitlement to his MRP was protected under USFSPA & therefore could not be garnished to pay him – the military member – child support owed to him by his former spouse! His former spouse is now $10,000 in child support arrears yet, continues to collect her full monthly MRP entitlement knowing he can’t touch it.

    There is something fundementally wrong with a law (the USFSPA) that places zero accountability and/or responsibility on a former spouse as to their financial obligation to support their own children. Only the member’s MRP can be garnished to pay a former spouse. That’s just wrong. And any former spouse that thinks this is fair is a greedy person who does not deserve any retirement pay.

    Very simar situation. My husband had custody of 2 kids and she never paid child support….behind almost 20000 yet his retirement pays her every month and she is a professional who can support herself. 10 year mark and he owes her for the rest of his life?!?!?! That is absolutely CRAZY!! The kids are grown and both have moved on. I see so many sites to repeal the usfspa but many are old or no ome kept up with it we all need to find a way to come together and tackle

    I retired from USAF in 1981 following 20 years active duty. So Congress passes USFSPA in 1982. I divorce in 1990, have paid xwife over $250,000. ( 50% of my pension) over past 29 years, and still paying. Living in poverty, struggle each month to hold on to modest home in Ct. This law is grossly unfair, and a serious slap in the face to vets, not to mention breach in contract.

    I have a question here. After reading all these comments my understanding is the ex-spouse feels that because of their numerous sacrifices and unwavering support that they should receive an equal share of the service members retirement pay for life. Because…for all intents and purposes the service member would have never succeeded without their spouses support. I’m wondering if a civilian spouse who was supported for an equal amount of years by their service member should also have to give up some of their future pay for life? The example would be …say, perhaps the service member covered all the bills with his/her mostly pay check, provided health insurance, housing, baby sat kids, helped out with meals etc. so the civilian spouse could go to school and get a degree or learn a trade. Perhaps that spouse even used a portion of the service members GI Bill. In that case the civilian spouse would have never succeeded in their future career without the support of that service member right? I wonder how many ex-spouses would feel it just as fair that the service member should receive some of that civilian spouses pay for the remainder of their life? I’ve never heard of this happening.

    My ex gets more of my retainer pay than I do, because she gets 50% based on my pay, but I have to pay the taxes on 100% of it. SMH.

    Former Spouse waited 32 years before she filed for Former Spouses Protection Act! I have been fighting her for the past five years here in Kentucky. She is a German National living in Germany and has cost me thousands of dollars in legal fees. Texas stomped all over my Jurisdictional Rights and Totally Ignored the Statute of Limitations. Talk about getting screwed!!

    I’m interested in learning more, If you don’t mind. My ex is trying the same after 36 years divorced.

    Please revise this article as it is incorrect. A marriage does not need to last for 10 years in order for MRP to be divisible. A marriage can last for one day and a judge can and has awarded former spouse pay. The 10 year language is that in order for a former spouse to have DFAS send the allotment the marriage must have lasted for 10 years. If the marriage lasts for less than 10 years then the retiree must pay the former spouse directly.

    How about limiting payments to the time actually married, then payments terminate. So, no more permanent alimony of sorts…..

    Some states already do this by limiting to the time married, but even if that, that verbiage is crap too! Alimony is based on the spouse making more than the other spouse. That is two separate things.

    That’s a good suggestion. I am about to receive money from the retirement made in my ex’s name but which he did not earn without significant support from me. I wonder if an offer to receive for 25 years, then stop might be more acceptable as this has become a point of contention. Thanks for the food for thought.

    Its important to note that every single situation is different. This act protects the MAJORITY and although not always fair, it is in place for good reason. I would say that it should remain but with clause so that all the facts of the situation are evaluated before a firm payout is made. In the case of infidelity, abuse, or abandonment by the soldier-yes, they should be required to pay. In the case opposite, there should be a division of said property that makes sense but doesnt leave the Veteran without. BLUF: There are formulas that can be used to distribute property. People need to educate themselves. It is important to note that each personal situation is very different.

    You also need to educate yourself. The military retainer pay, which some mistakenly label as a pension, is meant for the military member ONLY. Whether male or female, it is not intended for his/her non-miltary spouse. It doesn’t matter how much you supported your spouse. He/she could have worked at 7-11 and still been supported by the spouse. The military member is the only one who put wear and tear on his/her body for 20+ years, had annual training requirements like physical fitness tests. martial arts trsining, combat fitness tests, time spent in the field, on the ship, in a combat zone, multiple deployments and time away from the family while the spouse while the spouse has the luxuries of everyday life in a civilized environment.

    Who would do 20 years in order to give it up to someone else. The TSP can be divided. but for those who think they are losing something from which their actual inputs were NOTHING, they are beyond selfish.

    When you put in the actual time and effort and are also subject to the UCMJ and subject to recall AFTER “retirement”, then you can claim that you have earned it. If you didn’t take an oath and didn’t serve, you did not earn it.

    Now, if someone cheats or is abusive to his/her spouse, then I can understand, but that’s where alimony comes in, not this.

    If you did not serve and think you deserve this, grow up and get over yourself.

    Try losing 38 percent of a military members
    50 percent division after 27 years of divorce due to sbp payment loophole re remarrriage. Fair? Hell No! Read ur facts

    It is NOT property, nor is it a pension. It cannot be sold, traded or passed on to heirs. It is a retainer (basically standby pay) and that was all it was intended to be since it began in 1945. It’s purpose was to retain good officers who could be relied upon to be recalled to active duty. That is why it is based in rank. The servicemember is the only one who sacrifices in order to get it. The TSP and other savings methods can be div8ded as property. This should not be.

    Why do you people (sposes) keep saying idiotic crap like that? How on earth to spouses come off saying that there ex would not have earned this retirement if it weren’t for you? Have none of you ever heard of retired service member that was a bachelo? this mindset of he wouldn’t have gotten there if it weren’t for me and needs to really get the hell out of y’alls minds. If that’s why you got married and the mindset you had while you were married, then that’s probably the reason why your ass is divorced now.

    There is no good reason! Former spouse need to get over themselves! the Law needs to go back to the McCarty v McCarty ruling! BS congress side stepping every law they don’t like or some lobbyist has a big enough paycheck to push legislation.

    *Next time you carry the Rucksack to the top of the mountain with all the supplies need to support your life, when we get to the top give me my half.

    I for one, am very grateful for this law! I supported my spouse from the beginning to the end of his career until he decided to blind-side me, leave and move in with his younger girlfriend the day after his departure. Although most marriages have issues, there was never an opportunity to work on it-even though I would have. There are so many scenario’s in which this is good and bad. I do agree, that in the case of an unfaithful spouse, it should be evaluated whether or not the pay should be distributed. However, in my care-where my husband was the Soldier, and made the choice to unexpectedly depart-I was very grateful for my protected rights and the knowledge that no matter what happens, I will always have that monetary support there for my daughter and I.

    How did you support him again? Just curious. Did you pay all the bills and all that junk? Do you talk about crap like taking care of the kids and making dinner, that is when you did make dinner of course and you guys weren’t going out.

    I ain’t saying I’m just saying you know what I’m saying.

    Y’all spouses all need to quit patting yourselves on the back.

    I’ve been fighting this since being blind sided by it upon divorcing my ex after her third affair (that I know of.) In my 20 year career I was NEVER briefed on it. I tried to stick it out for the sake of the kids but had I known about this law I would have divorced her before the 10 year point. My elected representatives all wave the flag and say they support the troops but wont even answer my letters regarding this issue. It’s actually worse than unfair since the only way around this grossly unjust law is for the ex or the service member to die! Thousands of suicides occur each year that are attributed to PTSD that are actually a direct result of this dreadful legislation. When Vets are hit with this out of left field and learn they will be financing the new house of the guy who was screwing his wife while he was deployed it’s a difficult scenario to deal with. Death is the only way to stop it!

    Unfair to military retired personnel for sure. Try 27 years after divorce she shows court order to DOD retired affairs and gets survivor benefit plan implemented with 24,000 dollars that needs to be payed back to the gov’t via my retirement annuity which leaves me with about 20 percent that I the retired member receive. No statute of limitations am appealing this decision but it doesn’t appear very promising at the moment. REPEAL without replacement.

    Former Spouse waited 32 years before she filed for Former Spouses Protection Act! I have been fighting her for the past five years here in Kentucky. She is a German National living in Germany and has cost me thousands of dollars in legal fees. Texas stomped all over my Jurisdictional Rights and Totally Ignored the Statute of Limitations. Talk about getting screwed!!

    Can I sue the new husband? My ex-wife was impregnated by him while I was on a short tour in Saudi Arabia back in 2001. Upon return, she told me and I filed in AZ and got my divorce. I’ve been paying her and the new family over 1000.00 per month ever since. Over 200,000.00 free money to the new family. They married shortly thereafter. We never had kids, by the way. This madness must end. I am 52 years of age now and hope (like all) for a couple of decades. By then, it’ll be 1/2 million dollars to them for cheating… Why can’t I get their retirement?

    Contact me if someone knows of a military person or retiree, since I am willing to challenge this statute in Colorado.

    John,, I am also looking to re-light this fire. I have also contacted my congressman and will not stop until this illegal law is overturned.

    I was part of a class action lawsuit that just died on the vine in the 2000 time frame. Been paying ex half my retirement all this time. Unfair to pay these cheaters, especially after they remarry.

    Whats worse is being married and serving over 22 years and my spouse cheats leaves me for another single retiring military member so 50% of my retirement gone to her and she will enjoy her share plus her new mans retirement at 24 years of service.. Win win for them.

    I am so glad that this has not been overturned in Colorado. My ex ran around on me the entire time of our marriage – (and keep in mind he goes both ways) with our friends and his family aware and approving the whole time. I put up with it for almost 20 years and gave up my career and life to raise our 3 children. While I am no innocent miss, my ex can say he would have earned this retirement without me but he DIDN”T earn it without me. And now he has remarried and wants me to give up my half for the new wife. I gave him the house and put our children through college on my dime after our divorce, so no, not a chance am I just giving up on the retirement that was supposed to be for us both. I never tried to screw him over. He can’t say the same about me. I am one of the wives this law was meant to shield and I am very grateful for it.

    Retired service member are not afforded any rights under government laws. Even worse, men are even less considered equal during the divorce process. Men that support and take care of their children are treated like deadbeats when going through divorce proceedings and by men lawyers and judges. The treated that most men receive during divorce often deter them from seeking or wanted to ever marry again. If a man allows his wife not to work during the marriage and it ends in divorce, he will be destroyed after a divorce. The system has to be changed in relation to men receiving equal treatment outside of the workplace. Good men and fathers are being destroyed by unfair laws executed by individuals not considering or even caring about the children involved. The whole system is built on greed both by spouses and crooked attorneys. I can tell you from experience a lot of attorneys are liars and will do or say whatever to make their clients look good and you look like a monster. Why should a man have to split something he worked 20 plus years to attain when his ex stayed home. Not fair.

    I’m a woman and I am going through a divorce where my soon to be ex husband chose to barely work, he didn’t help around the house and as soon as I retired I found out he’s cheated on me repeatedly. At least male military members usually have wives that keep the house, cook dinner and help them with life. Throughout our 20 year marriage I got none of that. He now lives with his girlfriend and is about to get 1/2 my freaking retirement. My lawyer says there is nothing I can really do about it. It doesn’t matter if it’s a man or a woman…if the spouse chose to live the military life –nobody is forcing these spouses to do this– especially if they cheat on or abuse the military member, they should give up any claim to military benefits! Not a man issue…a military member issue!

    So now I have to wonder, is anyone fighting this? I read the article but there is no mention of any proposed changes to this seemingly unfair act

    I am sorry, but if the ex-spouse isn’t willing to handle the trauma caused by war when the warrior returns, then they shouldn’t be eligible for any of it. Retirement accounts are different than retirement benefits. The laws need to only deal with the actual accumulated wealth during the marriage, and pretend that future wealth of retirement benefits are already realized. There are ways that the veteran can lose benefits, and with certain orders they can still be held to account for providing equivalent benefits to their ex-spouse. If it can’t be divided and received by the ex-spouse during the divorce, then its not realized. These laws have to change.

    I totally agree. A real, organized group needs to be formed so these issues can be provided to Congress. I was never forced to support my husband. He always said participate in what you want and if you don’t feel like doing things don’t do them. It’s okay with me. Guess what? He still got promoted. His ex has hounded him for every cent. At one point he said the only way this will stop is if I kill myself. I don’t think he’d do it but the fact service members even have to think this way makes me sad. Not every spouse supports. Some go on to have great careers, get to travel the world, have the privilege of not having to get up and to to work themselves everyday. Now there are laws put in place that allow them to take their certifications and licenses from state to state with minimal hassle so the fact they can’t work or take their job with them is not as much of an excuse for them. Alimony and child support should help move them along after a divorce. In my husbands case she cheated, cleaned out their checking account and moved out with her lover while he was on deployment. Some service members progress in their jobs “despite” their spouse. It’s so infuriating.

    The Former Spouse Protection Act should be abolished or at least amended with limitations. It not right that a former spouse continue drawing these payments from a military retirees pension for the rest of their life. If the spouse re marries the payments should immediately stop with no ifs, ands or buts, and returned to the military retirees retirement pay. Limit the FSPA payments to the total number of years they were married during a military career, after that stop FSPA payments immediately and return to the military retirees pension. The only way someone in Washington ,DC, IE Congress to listen is to submit a 100,000 or more signature petition to Congress demanding the abolishment or amendment of the Former Spouse Protection ACT. This is a long overdue oversight that Congress needs to reconsider. This especially unfair to retired veterans who former spouses are now drawing their own job retirement pensions and their own social security payments.

    My ex-wife has two degrees that I help get for her and gets my retirement. and is re-married to the guy she cheated with raising his three kids. Not fair at all. She stayed at home and went to school full time while I was deployed. When she re-married then everything should have stop with no benefits at all. I was lucky I was stationed at one base for 20 years out of 23 years. Most Ex spouse has better education and jobs then the members do. This act was meant for true housewives back then not now. This has to change to help all service member get what they deserve after serving for their country is their full retirement. after 20 plus years of service .

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