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Uniformed Services Former Spouses' Protection Act
The Uniformed Services Former Spouses' Protection Act (or USFSPA) is a U.S. federal law enacted on September 8, 1982 to address issues that arise when a member of the military divorces, and primarily concerns jointly-earned marital property consisting of benefits earned during marriage and while one of the spouses (or both) is a military service member.〔(Uniformed Services Former Spouses' Protection Act (USFSPA) ), 10 U.S. Code §1408, Legal Information Institute (LII). Accessed 2015-11-15.〕 The divisibility of U.S. military retirement payments in divorce proceedings has had a turbulent legislative and legal history, and the USFSPA has not closely tracked its civilian cousin enacted in 1975, the Employee Retirement Income Security Act (ERISA), although they are similar in some respects with regard to public policy aims.
==Types of post-service pay at issue==
Military retirees fall into two general categories: those retired for disabilities and those retired for length of service.〔Ives, J. and Davidson, M., (Court-Martial Jurisdiction Over Retirees Under Articles 2(4) and 2(6): Time to Lighten Up and Tighten Up? ), ''Military Law Review'', v.175, p.5, March 2003.〕 Members of the U.S. military who serve honorably for a specified period, generally at least 20 years,〔U.S. General Accounting Office, ''(Military Retirement: Possible Changes Merit Further Evaluation )'', Rep. No. GAO/NSAID-97-17, p.21, Nov. 15 1996. ((Full report ), 57 pp.) Accessed 2015-11-16.〕 are entitled to retire and to receive retirement pay.〔10 U.S. Code (§6321 ) et seq..〕 Military veterans are entitled to compensation for service-connected disabilities, a benefit generally called ''VA disability'', with some exceptions.〔38 U.S. Code (§1101 ) et seq..〕 Some service members may be entitled to a different benefit called ''combat-related special compensation'' (CRSC) because of disability caused either by direct engagement in an armed conflict or through an instrumentality of war, such as exposure to Agent Orange.〔10 U.S. Code (§1413a ).〕〔(CRSC Information Paper ), Military Compensation, DOD, May 2008. Accessed 2015-11-16.〕 In general, eligible service members must elect either retirement pay, or any disability benefit awarded for a service-connected disability, or choose a CRSC benefit alone, but they may not receive all three, however, some veterans may qualify to receive both retirement pay and a disability benefit.〔(Concurrent Receipt Programs ), Concurrent Retirement & Disability Payments (CRDP) and Combat-Related Special Compensation (CRSC), (both are non-taxable benefits), Military Compensation, DOD, May 2008. Accessed 2015-11-16.〕
''Disposable retired pay'' is a measure of post-service pay defined as the gross retired pay less (A) any prior military retirement overpayments and recoupments required by law, (B) any court-martial forfeitures, (C) retirement pay waived in order to receive disability payments from the VA, and (D) the premium costs paid for a spouse, or former spouse pursuant to court order, as a designated survivor under the Survivor Benefit Plan.〔USFSPA, 10 U.S. Code §1408(a)(4).〕
Former spouses can receive their marital share of the retirement benefit directly from the Defense Finance and Accounting Service (DFAS) rather than from the ex-spouse, but to do so must have at least 10 years of marriage to the service member which overlaps the military service.〔USFSPA, 10 U.S. Code §1408(d).〕 The Department of Defense Financial Management (DoDFM) Regulation section 7000.14-R entitled ''Former Spouse Payments from Retired Pay'' sets forth all of the requirements for former spouses to receive direct payment from DFAS.〔Defense Finance and Accounting Service (DFAS), Financial Management Regulation, (Former Spouse Payments from Retired Pay, Summary of Major Changes ), Volume 7b, Chapter 29, DoD 7000.14-R, December 2010. Accessed 2015-11-15.〕〔Black & Graham, LLC, (Military Divorce Guide re: VA Disability/Indemnity for VA Waiver ). Accessed 2015-11-15.〕
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