In the late 1970′s and early 1980′s, various state divorce courts began to treat military retired pay as “community property,” often awarding a portion of a military member’s retired pay to the former spouse. One such case from California finally wound its way through the Federal Courts to the Supreme Court. The case of McCarty v. McCaro, 453 US 210 (1981) held that Federal law did not allow retired pay to be treated as joint property. In its decision, the Supreme Court was very clear that the division of military retired pay was not necessarily unconstitutional, but that current Federal laws (at that time) prohibited treating military retired pay as joint property.
The Court held that, in the dissolution of a marriage, Federal law precluded the California Court from dividing military non-disability pay pursuant to state community property laws. Since the military retirement laws contained nothing permitting states to divide a military pension in the dissolution of marriage, the California Superior Court was reversed.
Congress was swift in dealing with the Court decision. In 1982, Congress passed the Uniformed Services Former Spouses Protection Act (“FSPA”) (10 U.S.C. §1408). The Act reversed the McCarty decision and allowed state Courts to treat military retired pay either as property solely of the military member or as property of the military member and spouse in accordance with the laws of the state.
The SFPA has been a source of confusion and controversy at both the state and federal level.
The Act applies to the uniformed services, defined to include Army, Navy, Air Force, Marine Corps and Coast Guard. The Act also applies to Reserve and National Guard members whether active duty, inactive duty or retired. Since the FSPA is a Federal statute, its provisions and the regulations preempt state law.
A state court order that contradicts the FSPA will not be enforceable. The FSPA, with limitations, allows a state court to treat a military pension either as property solely of the service member or as property of the member and his or her spouse in accordance with the law of the jurisdiction.
The Act sets forth that a state court may not divide a military pension unless the court has jurisdiction over the member by reason of his or her
(1) residence other than because of military assignment in the territory or jurisdiction of the court, (2) domicile in the territory or jurisdiction of the court and (3) consent to the jurisdiction of the court. It is entirely possible for divorce, child support and alimony jurisdiction, but not pension jurisdiction, to exist in a case where the service member declines to participate and does not seek affirmative relief.
The ten-year rule precludes a state court from effectively ordering direct payments of the pension benefit from the Defense Finance and Accounting Service unless the former spouse was married to the serviceman for ten years or more, during which time the member performed at least ten years of service credible for retirement purposes. A state court is not prohibited by the FSPA from dividing a military pension in a marriage of less than ten years; however, direct payment of the pension benefit to a non-military spouse by the Defense Finance is not permitted. There is no ten-year marriage requirement for garnishment from Defense Finance of child support, alimony or both.
Upon obtaining a final decree dividing a military pension, the decree is then forwarded by certified mail to the Defense Finance Department. A DD Form 2293, “Request For Former Spouse Payments,” for retired pay is completed and included with a certified copy of the final decree. A Qualified Domestic Relations Order is not required.
The Defense Finance Department is allowed ninety (90) days to respond in writing regarding whether the Order will be honored. It is a policy of the Defense Finance Department to honor orders that meet the requirements of the law.
To simplify the statute, the benefits are presented in escalation of years of service that overlap active duty years falling in the categories of: 10/10, 20/20/15, and 20/20/20. 10/10 indicates a marriage of at least ten years that overlaps ten years of active duty service. The FSPA provides no benefits for divorces obtained prior to satisfying the 10/10 years requirement. For divorces after the ten-year period is achieved, the non-military spouse may obtain a state court decree that distributes a portion of the military member’s retirement pay and file the decree to obtain involuntary direct payments.
20/20/15 indicates a marriage of at least twenty years coupled with twenty years of creditable service, with at least fifteen years of overlap between marriage and years of service. In addition to the 10/10 benefits, the statute provides medical benefits for the un-remarried former spouse.
Finally, 20/20/20 indicates a marriage of at least twenty years with twenty years of creditable service that overlapped each other for at least twenty years. This category allows for the former spouse to retain all the military benefits of the retired military spouse, including a military ID card, commissary and exchange privileges and medical benefits.
Whether to treat the military retirement as property solely of the military member or as property of the spouse, and whether a division should be equal or unequal, still remains within the prerogative of the Court. The intent of Congress in enacting the statute was to protect the former military spouse.