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

    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.

    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.

    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.

    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?

    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.

    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.

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