Are former spouses of military retirees automatically entitled to a portion of the retirees' retired pay?
No, there is no Federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must have been awarded a portion of a member’s military retired pay in a State court order. The Uniformed Services Former Spouses’ Protection Act (USFSPA), Title 10, United States Code, Section 1408, passed in 1981, accomplishes two things. First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. Second, it provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member’s retired pay. Retired pay as property payments are prospective only. Retired pay arrears cannot be collected under the USFSPA.
May a former spouse enforce any other types of court-ordered awards under the USFSPA?
Yes. The USFSPA also provides for the enforcement of court-ordered current alimony, current child support and child support arrears. Please see application requirements listed in question 5. Additionally, in order to apply for child support arrears, a former spouse must submit a court order awarding the arrears that was issued within the last two years. This requirement is in addition to the application requirements listed in question 5. Alimony arrears cannot be collected under the USFSPA. The maximum amount that can be collected for USFSPA payments is 50 percent.
In addition to the USFSPA application, a former spouse can also submit an income withholding order under Title 42 of the United States Code Section 659 (42 U.S.C. § 659) to enforce current child support, alimony, as well as child support and alimony arrears orders. Cases that are paying under both the USFSPA and 42 U.S.C. § 659 (income withholding order) will pay up to 65 percent of the member’s disposable income.
Does the USFSPA place any restrictions on the power of State courts to divide military retired pay?
The USFSPA has a separate jurisdiction requirement for the division of military retired pay as property. The USFSPA states that for a State court to have authority to divide a member’s military retired pay, it must have jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court. A court may have jurisdiction over an absent member by reason of some state statute, but that may not satisfy the USFSPA’s jurisdiction requirement. This special jurisdiction requirement does not apply to alimony or child support awards.
Does the USFSPA have any other requirements that apply to retired pay as property awards only?
In order for a former spouse to qualify for direct payments of retired pay as property under the USFSPA, the former spouse must have been married to the member for 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay (the 10/10 requirement). The 10/10 requirement is a statutory requirement for direct payments under the USFSPA, and cannot be waived by the member. If the 10/10 requirement is not met, it does not mean that a former spouse’s retired pay award is invalid. It means only that it cannot be enforced by direct payments under the USFSPA. The 10/10 requirement does not apply to the enforcement of alimony or child support.
How does a former spouse apply for direct payments under the USFSPA?
In order to apply for direct payments under the USFSPA, a former spouse must submit a completed Application for Former Spouse Payments from Retired Pay (DD Form 2293), and a copy of the pertinent court order stating the former spouse’s award or awards that has been certified by the clerk of court. A photocopy of the certified order is acceptable. In order to complete the application, the former spouse may have to submit additional documentation for DFAS to determine whether all requirements, such as 10/10 or jurisdiction, were met. The application must be sent to Garnishment Law Directorate at the Defense Finance Accounting Service (DFAS). The application may be faxed to 877-622-5930 (toll-free) or sent by regular mail to:
Assistant General Counsel for Garnishment Law Directorate
P.O. Box 998002
Cleveland, OH 44199-8002.
Why would DFAS send a former spouse a rejection letter stating that in order to complete the USFSPA application, the former spouse must obtain a new order clarifying the former spouse's retired pay as property award?
According to the USFSPA, a retired pay as property award must be expressed as a fixed dollar amount or percentage of disposable retired pay. The implementing regulation also permits the use of an acceptable formula or hypothetical retired pay award if the parties were divorced prior to a member’s becoming eligible to receive retired pay. However, in any case, the court order must provide enough information to enable DFAS to compute the amount of the award. Awards such as “50 percent of the military retired pay accrued during the marriage” or “50 percent of the marital portion of military retired pay” do not suffice. For examples of acceptable award language, please see Appendix A of Chapter 29 of the DoD Financial Management Regulation, Volume 7B. If the retired pay award language is not acceptable, the former spouse must have the court clarify the amount of the retired pay award by expressing it in an acceptable manner.
How long does it take for a former spouse to begin receiving direct payments under the USFSPA once DFAS approves the application?
If the member is already eligible to receive retired pay, the USFSPA requires that former spouse payments begin not later than 90 days after DFAS receives a complete application for payments which satisfies all the requirements of the USFSPA. This 90 day requirement gives DFAS enough time to process the application, and provide the member with the required notice. The member has 30 days from the date the notice was mailed to provide legal documentation showing why payments should not begin. No payments can be made until after the 30 day notice period. Also, since payments of military retired pay are made only once each month at month-end, the commencement of former spouse payments must be coordinated with the monthly retired pay cycle. If a member is not yet eligible to receive retired pay when DFAS approves the former spouse’s application, DFAS will retain the application. In such case, the USFSPA requires that DFAS begin former spouse payments not later than 90 days after the member becomes eligible to receive retired pay.
What if a member had been paying a former spouse's retired pay award by voluntary allotment prior to the former spouse's applying to receive direct payments under the USFSPA?
DFAS is required to begin USFSPA payments within the statutory time frames stated above. The member’s notice letter provides the member with an opportunity to cancel any voluntary allotments to the former spouse prior to the start of USFSPA payments. DFAS has no authority to stop any of the member’s voluntary allotments. If the former spouse is overpaid because an allotment is not cancelled in a timely manner, it would be the member’s responsibility to recover any overpayment.
How much will a former spouse receive under the USFSPA?
The maximum amount that can be paid under the USFSPA is 50 percent of the member’s disposable income. DFAS will pay a former spouse the monthly amount or amounts awarded in the pertinent court order up to the 50% limit. The implementing regulation requires DFAS to construe all percentage awards as a percentage of disposable retired pay, which is gross retired pay less authorized deductions. Also, according to the implementing regulation, percentage awards will automatically receive a proportionate share of the member’s cost-of-living adjustments (COLAs), but COLAs are not available for fixed dollar amount awards, even if COLAs were awarded in the court order.
Cases that are paying under both the USFSPA and 42 U.S.C. § 659 (income withholding order) will pay up to 65 percent of the member’s disposable income. See question 2 for additional information.
What are the authorized deductions to be used in computing a member's disposable retired pay?
The authorized deductions depend on the effective date of the parties’ divorce, dissolution, annulment or legal separation. If the date was on or after February 3, 1991, the authorized deductions are:
- Amounts owed to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay.
- Forfeitures of retired pay ordered by court-martial.
- Amounts of retired pay waived in order to receive compensation under Title 5 (federal civilian employment) or Title 38 (Department of Veterans Affairs) of the United States Code.
- The amount of the member's retired pay under 10 U.S. Code Chapter 61 (Retirement or Separation for Physical Disability) computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list).
- Premiums paid as a result of an election under 10 U.S. Code Chapter 73 (Survivor Benefit Plan) to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order.
If a former spouse was awarded a percentage of a member’s disposable retired pay, changes in the member’s authorized deductions will result in a change in the amount the former spouse receives.
What if a former spouse needs to update or change information such as a bank account or mailing address?
Those changes must be made in writing to DFAS Garnishment Law Directorate at the contact information provided above in the answer to question 5. Also, former spouses may have access to myPay to update and review their account. For more information on myPay, go to https://mypay.dfas.mil/mypay.aspx. For other questions, call 888-332-7411, option 6.
Are USFSPA retired pay as property payments taxable to the former spouse?
Yes, they are considered taxable income to the former spouse. DFAS is required to issue the former spouse a Form 1099-R each year reporting the former spouse’s portion of retired pay. USFSPA retired pay as property payments are also subject to federal income tax withholding (FITW). In some cases the monthly retired pay amount will fall under the threshold for automatic FITW. There is no separate income tax reporting for alimony or child support payments made under the USFSPA. A former spouse may want to consult a tax professional concerning the reporting of USFSPA payments.
What type of information may a former spouse receive regarding a member's retired pay account?
DFAS can release pay information pertinent to the calculation of the amount of a former spouse’s payment without violating the Privacy Act rights of the retired member. However, that information must be requested in writing, and cannot be discussed on the telephone if the former spouse calls the DFAS customer service line. Other questions regarding former spouse information can be directed to the DFAS Garnishment Law Directoratet at the address provided in the answer to question 5. above, or by calling between 8 a.m. and 4:30 p.m. eastern time, to 888-332-7411 or 216-522-5096. When using either number, select option 6. If a contact representative is not immediately available, please leave a message and one of our staff members will reply to your question.
Can a former spouse qualify for direct payments under the USFSPA based on an order issued by a court of a foreign country?
No. DFAS can honor only orders issued by courts of competent jurisdiction as defined in the USFSPA. At the present time, courts of competent jurisdiction include courts of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands. No foreign courts are included.
Where can I get Survivor Benefit information?
See the SBP pages or the DD2656-10 instructions. If you have any questions regarding SBP coverage, you may call Retired and Annuitant Pay at 800-321-1080.
How do I report the death of a former spouse to DFAS.
DFAS requires written documentation regarding the death of a former spouse. Please include a copy of the death certificate. In the letter, please include the military retiree’s name and social security number and the date of the former spouse's death. Fax this information to DFAS at 877-622-5930 or mail it to:
Assistant General Counsel for Garnishment Law Directorate
P.O. Box 998002
Cleveland, OH 44199-8002.
What happens to USFSPA payments going to a former spouse when the member or the former spouse dies?
When a member dies, USFSPA payments going to a former spouse will stop. If the former spouse dies, payments will also stop. Former spouse payments cannot be passed on to a third party such as a beneficiary under a will when a former spouse dies. Once former spouse payments stop, those funds will revert back to the member's pay.