The Uniformed Services Former Spouses' Protection Act
| Jurisdiction | United States,Federal |
| Citation | Vol. 13 No. 3 Pg. 442 |
| Pages | 442 |
| Publication year | 1984 |
1984, March, Pg. 442. The Uniformed Services Former Spouses' Protection Act
The Uniformed Services Former Spouses' Protection Act(fn1) ("USFSPA") provides that a state may treat military retirement pay of a U.S. serviceman in the same manner as other pension or retirement plans, with certain limitations. Although the Act does not require a state to divide a military pension, it allows a court to do so if warranted. The USFSPA was enacted in response to the U.S. Supreme Court decision in McCarty v. McCarty.(fn2) The court held that military non-disability retirement pay was not divisible as community property, although the California State Supreme Court held otherwise.
The USFSPA applies to all dissolutions or divorces entered after February 1, 1983, where there is a valid court order dividing the retirement pay and provided the following requirements are satisfied:
1) Compliance with the Soldier's & Sailor's Civil Relief Act has been achieved in the divorce court.(fn3)
2) Proper jurisdiction of the service member has been obtained.
3) The court order dividing the retired pay is limited to 50 percent of the disposable pay.(fn4) Apparently, the court may order the member to pay an additional percentage directly to the ex-spouse because the percentage limits appear in the portion of the USFSPA providing for direct payments only. When two or more spouses have claims, direct payments may not exceed, in the aggregate, 65 percent.(fn5)
4) A divorce court order requiring the service member to retire at a specified time is prohibited.(fn6)
5) The marriage must have existed for at least ten years of the member's military service.(fn7) This is only required for direct payment from the military. Otherwise, there is no requirement that the marriage last a given number of years. However, it should be noted that this is a key provision to avoid the difficulty of collecting court-ordered payments.
6) The former spouse is prohibited from selling or inheriting the retirement pay.(fn8)
In McCarty, a petition for dissolution was filed by the husband in California in 1976, after having been married since 1957. McCarty had served eighteen of the required twenty years toward his military retirement. The California Superior Court found that the...
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