Law gives former spouses certain rights - Military Law, Military Law Advice, Ask a Lawyer - Air Force Times

Law gives former spouses certain rights

The first e-mail that I received after starting this column was about the Uniformed Services Former Spouses’ Protection Act — and the e-mails have not stopped since. Those who are unfamiliar with the USFSPA should read this article. Those of you with advanced USFSPA questions can send them to me and check our future online columns, which can be found at http://www.airforcetimes.com/community/ask_lawyer.

The background: Effective Feb. 1, 1983, the USFSPA provided authority for state courts to treat disposable retired pay as marital property. The effect is that former spouses may now be entitled to receive a portion of the other spouse’s share of military retired pay directly through a military finance center; may continue to receive military benefits after divorce; and may continue to be designated as Survivor Benefit Plan beneficiaries following a divorce.

While the USFSPA provides a former spouse with a number of significant rights, there are actions or procedures that it does not provide for nor require.

Specifically, the USFSPA has no requirement that a court divide military retired pay; it does not create a formula by which the parties are to share military retired pay; and it requires no overlap between military service and marriage as a prerequisite to a division of military retired pay as property.

The big question, however, is what pay is divisible — gross retired pay or “disposable retired pay?” Ultimately, the decision was made by several jurisdictions that the USFSPA provided authority to divide both.

Now that you know what the USFSPA does and does not do, and what is divisible, the next question becomes how to divide it. As stated above, military retired pay may be divided between former spouses, but it is important to recognize that the USFSPA does not mandate a division or specify how it is to be divided. It simply provides states with the authority should they choose to do so.

Whether to divide military retired pay and how much to divide it is controlled by state law — there is no federal right. That being said, good or bad (depending on which side you’re on), every state has now established precedent providing that military retired pay is divisible for property settlement purposes, including but not limited to spousal maintenance and child support.

Similar to any area of law, each state may have different prere-quisites before making determinations. The division of military retired pay is no different.

How much of your retirement pay might you have to part with after divorce? Again, there is no federal formula; state law controls the division. Here’s the “typical” formula: 0.5 multiplied by the length of overlap of your marriage and service, divided by your time in the service, multiplied by 100.

Here is an example: You joined the military in 1975; married in 1980; and were honorably discharged from the military in 1990. The length of overlap would be 10 years. Your time in the service would be 15 years. You would divide that overlap figure, 10, by the service figure, 15, to get 0.67. From there, multiply 0.67 by 0.5, equaling 0.335. Multiply 0.335 by 100 and you get 33.5 percent — the percentage of your retired pay that your former spouse is entitled to.

In this example, if you were receiving military retired pay in the amount of $1,300 a month, your former spouse would receive $435.50 a month and you would receive $864.50. Keep in mind this is the “typical” formula and is provided as a guide. Your state may use a different formula.

A number of excellent and free resources are available to you should you need or desire additional information on the Uniformed Services Former Spouses’ Protection Act.

For more information, check out http://www.dfas.mil/militarypay/garnishment/fsfact.html; http://www.thecre.com/fedlaw/legal22.htm; and these sections of the U.S. Code: 1072, 1076, 1086, 1408, 1447, 1448, 1450 and 1451. Cornell University maintains an online version of the U.S. Code at http://www4.law.cornell.edu/uscode.

My next online column will provide more information on the USFSPA and the recent involvement of the Supreme Court in this matter. I’d like to thank my family law associate, Nicole Helmer, for helping me on this column.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.