Most of the pension protections for military ex-spouses were established through the Uniformed Services Former Spouses Protection Act of 1982 (USFSPA
). This law was passed to overrule a United States Supreme Court 1981 case, McCarty v. McCarty, holding that military retired pay could not be treated as marital property in divorce. USFSPA allows a state divorce court to award a share of a member's pay as marital property.
USFSPA generally permits, but does not require, a state court to award a share of retired pay. The treatment of military retired pay differs from state to state. In most community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), a portion of the military spouse's retired pay will be considered the property of both spouses, and the non-military spouse will be entitled to one-half of that portion. The portion will generally be based on the number of years of marriage during which the retired pay was earned, divided by the total years of service. If the spouses were married for at least ten years while the member was on active duty, the non-military spouse will qualify for direct enforcement, which means that his or her portion of the retired pay will be paid to him or her directly by the military finance office.
Most non-community property states will award a portion of the retired pay to the non-military spouse. A few states treat military retired pay as the property only of the military person. But usually in those states, the judge must consider the retired pay received by the military spouse when setting the amount of alimony
What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS
) will pay directly the former spouse's share of the military retirement if there were at least 10 years of marriage overlapping 10 years of creditable military service (the 10/10 rule).
If the former spouse satisfies the 10/10 rule, the spouse can apply for direct payment from DFAS of his/her portion from the division of military retirement (if Army
, Air Force
Assistant General Counsel for Garnishment
Defense Finance and Accounting Service - Cleveland Center
PO Box 998002
In the divorce proceeding, you need to make sure the court orders a percentage of his retired pay, to you, as community property. Once you have this you can apply to DFAS for direct payment
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