Chapter 36 - § 36.3 • MECHANICS OF THE USFSPA
| Jurisdiction | Colorado |
Under the USFSPA, the military will pay a part of disposable retired pay (up to 50 percent) directly to a former spouse, as property, if the parties were married at least 10 years overlapping the member's military service. As the award of retired pay is a property settlement, and not maintenance, the payments will continue even if the former spouse remarries. Only the death of the member or former spouse stops the payments.
Note that the Act does not require the parties to have been married 10 years or more, only that the military will not issue a separate check to a former spouse if the parties were not married at least 10 years during military service. Thus, the court still has jurisdiction to divide military retired pay even if the parties have been married for under 10 years.
Practice Pointer
Whatever the military retired pay division court order awards to the former spouse, DD Form 2293, Application for Former Spouse Payments from Retired Pay (see Exhibit 36B to this chapter), must be used to notify the Defense Finance and Accounting Service (DFAS) of the award. DD Form 2293 must have attached to it a certified copy of the decree and certified copy of the order or agreement that divides the retirement, both certified within the last 90 days. DD Form 2293 must be signed by the former spouse and all applicable sections completed. The application must include a copy of the parties' marriage certificate (no certification required), unless the date of marriage is contained in the order or agreement; so including the date in an order/agreement saves the applicant from having to dig out a long-lost marriage certificate.
Military Retired Pay Division Order
The military retired pay division court order must accompany DD Form 2293. In order for the finance centers to honor it, the order (or other documents served with the court order) must contain the following:
• The identity of the member concerned and his or her Social Security number (10 U.S.C. § 1408(b)(1)(C));
• Certification that the rights of the member, under the Servicemembers Civil Relief Act, were observed (DoD FMR Vol. 7B, Chapter 29, ¶ 290602); and
• Provision for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay of a member, to the spouse or former spouse of the member (10 U.S.C. § 1408(a)(2)(C)).
The order should additionally contain the following:
INFORMATION CONCERNING THE PARTIES
The parties were married __________
Military member name __________
Party Status Respondent/Petitioner
Social Security No. __________
Date of Birth __________
Branch of Service U.S. Air Force or Army
Address __________
__________
Former Spouse (name) __________
Party Status Petitioner/Respondent
Social Security Number __________
Date of Birth __________
Address __________
__________
A sample military retired pay division court order is attached in Exhibit 36A to this chapter.
Practice Pointer
Be aware that the military retired pay division court order in Exhibit 36A must be tailored to the facts of your case. However, it is a good starting point that contains all of the information required by DFAS.
Garnishment for Child Support and Maintenance: Use DD Form 2293
DD Form 2293 is also the operative document to apply for garnishment of child support and/or spousal maintenance. A certified copy of the support order must accompany DD Form 2293 in order for DFAS to pay child support or spousal maintenance.
Practice Pointer
A garnishment order is an order directing an employer to issue payments from the member's pay to satisfy a legal obligation for child support, alimony, or division of property other than a division of military retired pay.
Practice Pointer
The following tips are particularly important when the attorney for either party is counseling his or her client:
1. Child support: A former spouse can collect support if there is a court order that awards child support and the former spouse and military member have ever been married to each other. 10 U.S.C. § 1408(d)(1).
2. Child support arrearages: To collect child support arrearages, a former spouse must submit a recent court order that lists the total arrearages. The order cannot be older than two years prior to the date DFAS receives it. (See DoD FMR Vol. 7B, Chapter 29, ¶ 290302, page 29-5.)
3. Spousal maintenance: A former spouse can collect current spousal maintenance (alimony) under the USFSPA. 10 U.S.C. § 1408(d)(1).
4. Spousal maintenance arrearages: Pursuant to DoD FMR Vol. 7B, Chapter 29, ¶ 290303, maintenance arrearages are not subject to garnishment.
5. Retired pay award: A former spouse can collect current retired pay award payments. 10 U.S.C. § 1408(d)(1).
6. Retired pay arrearages. There is no provision in federal law authorizing DFAS to pay a former spouse any back retired pay, and such requests will not be honored.
7. Property other than a division of retired pay: A former spouse can collect a property division other than a retired pay award by garnishment if the order awards it to the former spouse and if the former spouse was also awarded maintenance, child support, or the division of retired pay. 10 U.S.C. § 1408(d)(5).
Jurisdiction over Military Retired Pay to Pay Child Support
Neither child support nor spousal maintenance is a division of property, and as long as the court has jurisdiction under its state law to enter such an order, DFAS will honor such state court order. So, while the USFSPA imposes special jurisdictional requirements for direct payment of military retirement as property, there are no such requirements to enforce an order for child support or spousal maintenance.
Example: The military member is stationed in state X, but is not a resident of that state. The wife files for divorce in state X; they have two children. The military member is served with divorce papers in state X. The state court will have jurisdiction over the military member for the purpose of entering a decree of dissolution of marriage, as well as child support and spousal maintenance. However, if one of the three jurisdictional requirements necessary to award a division of military retired pay is not met, the court cannot award the former spouse a property interest in the military retired pay.
Disposable Retired Pay
Under the 1990 amendment to the USFSPA, "disposable retired pay" means gross military retired pay less the cost of the Survivor Benefit Plan (SBP, as outlined herein), less retired pay waived to receive Veterans Administration (VA) disability payments, and less debts payable to the United States.
Direct Payments of Retired Pay Limited to 50 Percent of Disposable Pay
The amount a former spouse is entitled to receive as direct payment under the USFSPA is limited to 50 percent of the disposable military retired pay, as defined under 10 U.S.C. § 1408(e)(1).15 Note that this is only a limitation on receiving direct payment from DFAS — federal law does not restrict a state court's authority to award a former spouse more than 50 percent of the disposable retired pay, but since DFAS will not itself pay any excess amounts, the amount must be collected directly from the retiree.
65 Percent Exception to 50 Percent Limit
Although disposable military retired pay may be subject to a maximum of 50 percent payment to a former spouse as property, a former spouse may be entitled to increase the amount up to an additional 15 percent if spousal maintenance and/or child support has been ordered. The additional percentage amount is determined as follows:
• 55 percent of disposable earnings is the maximum percentage allowable if the payer provides proof that he or she is providing more than half of the support of any dependents other than those for whom the support is to be deducted and if the payer has accrued an arrearage;
• 60 percent of disposable earnings is the maximum percentage allowable if the payer has not provided proof that he or she is providing more than half the support of any dependents other than those for whom the support is to be deducted and if the payer has not accrued an arrearage, 15 U.S.C. §§ 1673(b)(2)(A) and (B);
• 65 percent of disposable earnings is the maximum percentage allowable if the payer has not provided proof that he or she is providing more than half the support of any dependents other than those for whom the support is to be deducted and if the payer has accrued an arrearage.
Jurisdiction Under USFSPA
A court may not treat the disposable retired pay of a member as property unless the court has jurisdiction over the member by reason of the following:
(A) his or her residence, other than because of military assignment, in the territorial jurisdiction of the court,
(B) his or her domicile in the territorial jurisdiction of the court, or
(C) his or her consent to the jurisdiction of the court. 10 U.S.C. § 1408(c)(4).
The Colorado Supreme Court determined in the 1992 case of In re Marriage of Booker, 833 P.2d 734 (Colo. 1992), that in order to divide military retired pay, jurisdiction must be acquired as provided under the USFSPA. 10 U.S.C. § 1408(c)(4). The court noted that USFSPA § 1408(c)(4) "prohibits state courts from exercising authority to determine the status of a military member's pension unless personal jurisdiction over the member is acquired by one of three specific methods." Booker, 833 P.2d at 739. The court further noted that this limitation was "adopted to curtail 'forum-shopping' by spouses who might file proceedings in states with favorable marital property laws but with which the military pensioner had little contact." Id.
The Colorado Court of Appeals affirmed the Booker decision in the case of In re Marriage of Akins, 932 P.2d 863 (Colo. App. 1997), holding that the test of jurisdiction for division of military retired pay is not matrimonial jurisdiction under C.R.S. § 13-1-124(1)(e), but rather the restrictive provisions of the USFSPA. Thus, unless one of the prongs to...
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