Uniformed Services Former Spouses' Protection Act Fact Sheet

Advice and support formilitary people

Moderators: moderator, DMP Forum Administrators

Post Reply
Message
Author
dmpadmin
Posts: 79
Joined: Sat Apr 03, 2010 1:16 pm

Uniformed Services Former Spouses' Protection Act Fact Sheet

#1 Post by dmpadmin » Sun Apr 04, 2010 2:35 pm

Uniformed Services Former Spouses' Protection Act Fact Sheet and Frequently Asked Questions

THIS IS A SUMMARY OF LAW AND IS PROVIDED TO YOU AS GENERALLY GOOD ADVICE. IF YOU HAVE MATTERS RELATING TO THIS OR OTHER LEGAL SUBJECTS, BUT ARE NOT AN ATTORNEY, WE ADVISE YOU TO CONSULT WITH ONE.

The Uniformed Services Former Spouses' Protection Act (the Act), 10 U.S.C. 1408, recognizes the right of state courts to distribute military retired pay to a spouse or former spouse (hereafter, the former spouse) and provides a method of enforcing these orders through the Department of Defense. The Act itself does not provide for an automatic entitlement to a portion of the member's retired pay to a former spouse. A former spouse must have been awarded a portion of a member's military retired pay as property in their final decree of divorce, dissolution, annulment, or legal separation (the court order). The Act also provides a method of enforcing current child support and/or arrears and current alimony awarded in the court order.

Court orders enforceable under the Act include final decrees of divorce, dissolution, annulment, and legal separation, and court-ordered property settlements incident to such decrees. The pertinent court order must provide for the payment of child support, alimony, or retired pay as property, to a spouse/former spouse. Retired pay as property awards must provide for the payment of an amount expressed in dollars or as a percentage of disposable retired pay (gross retired pay less allowable deductions). An award of a percentage of a member's retired pay is automatically construed under the Act as a percentage of disposable retired pay. A Qualified Domestic Relations Order is not required to divide retired pay as long as the former spouse's award is set forth in the pertinent court order.

In all cases where the member is on active duty at the time of the divorce, the member's rights under the Servicemen's Civil Relief Act of 1940 (SCRA) must have been observed during the state court proceeding. In addition, for orders dividing retired pay as property to be enforced under the Act, a member and former spouse must have been married to each other for at least 10 years during which the member performed at least 10 years of creditable military service (the 10/10 rule). Also, to enforce orders dividing retired pay as property, the state court must have had jurisdiction over the member by reason of, (1) the member's residence in the territorial jurisdiction of the court (other than because of his military assignment), (2) the member's domicile in the territorial jurisdiction of the court, or (3) the member's consent to the jurisdiction of the court,. as indicated by the member's taking some affirmative action in the legal proceeding. The 10/10 rule and the jurisdictional requirement do not apply to enforcement of child support or alimony awards under the Act.

The maximum that can be paid to a former spouse under the Act is fifty percent (50%) of a member's disposable retired pay. In cases where there are payments both under the Act and pursuant to a garnishment for child support or alimony under 42 U.S.C. 659, the total amount payable cannot exceed sixty-five percent (65%) of the member's disposable retired pay. The right to payments under the Act terminates upon the death of the member or former spouse, unless the applicable court order provides that the payments terminate earlier.

In order to apply for payments under the Act, a completed application form (DD Form 2293) signed by a former spouse together with a certified copy of the applicable court order certified by the clerk of court within 90 days immediately preceding its service on this Center should be served either personally or by facsimile or by mail, upon the:

Defense Finance and Accounting Service
Cleveland Center, Code L
PO Box 998002
Cleveland, Ohio 44199-8002
(216) 522-5301 (Customer Service)

The application form should state which awards the former spouse is seeking to enforce under the Act (i.e., alimony, child support, and/or division of retired pay as property). If the application does not contain this information, then only awards of retired pay, as property will be enforced under the Act. A former spouse should also indicate the priority of the awards to be enforced in case there is not sufficient disposable retired pay to cover multiple awards.

The court order should contain sufficient information for us to determine whether the SCRA, and the Act's jurisdictional and 10/10 requirements (if applicable), have been met. If we cannot determine the parties' marriage date from the court order, then the former spouse must submit a photocopy of their marriage certificate. If the former spouse is requesting child support, and the court order does not contain the birth dates of the children, the former spouse must provide photocopies of their birth certificates.

If the requirements of the Act have been met, payments to a former spouse must begin no later than 90 days after the date of effective service of a complete application. If the member has not yet retired at the time the former spouse submits his or her application, payments must begin no later than 90 days after the date on which the member first becomes entitled to receive retired pay.

Court orders awarding a portion of military retired pay as property that were issued prior to June 26, 1981, can be honored if the requirements of the Act are met. However, amendments issued after June 25, 1981, to court orders issued prior to June 26, 1981, which were silent as to providing for a division of retired pay as property, cannot be enforced under the Act. Also, for court orders issued prior to November 14, 1986, if any portion of a member's military retired pay is based on disability retired pay, the orders are unenforceable under the Act.

Section 1408(h) of the Act provides benefits to former spouses who are victims of abuse by members who, as a result of the abuse of a spouse or dependent child, lose the right to retired pay after becoming retirement eligible. A former spouse may only enforce an order dividing retired pay as property under this Section, and all of the other requirements of the Act must be satisfied. The right to payments under this Section terminates upon the remarriage of the former spouse, or upon the death of either party.

Garnishment Operations Facsimile (FAX) Information:
Fax Phone Number: Commercial (216) 522-6960 or DSN 580-6960.

In improving the processes in the Garnishment Operations we are now using a fax gateway directly into our Electronic Document Management System. To ensure your document is processed in a timely and efficient manner you must include the following information on the fax document and follow the additional guidance provided:

Member/Employee Social Security Number (SSN) - Court Orders/Documents will not be processed if the SSN is not on the document
Return Phone Number
Return Fax Number
Ensure original documents are clear and legible
In each fax transmission, include only correspondence for one member or employee (if you have multiple documents for one member, they can be sent on one fax transmission)
Survivor Benefit Plan (SBP) Coverage:
A member may elect "former spouse" SBP coverage for a former spouse who was originally a "spouse" beneficiary under SBP, provided that the parties were divorced after the member became eligible to receive retired pay. In addition, a former spouse may initiate SBP coverage on her own behalf ("deemed election"), provided that this election is made within 1 year of the issuance of the court order requiring SBP coverage. All correspondence regarding SBP coverage should be sent directly to the Retired Pay office:

Defense Finance and Accounting Service
Cleveland Center, DFAS-CL [Attn: Code FRB (for retired members) or Attn: Code FRABA (for active duty members and reservists)]
PO Box 99191
Cleveland, Ohio 44199-1126
Toll free 1-800-321-1080

Uniformed Services Former Spouses' Protection Act Frequently Asked Questions and Answers

The court awarded me 50% of my former spouse's retired pay which had accrued as of the date of our divorce. Why do I need to get a clarifying order to have my award enforced under the Uniformed Services Former Spouses' Protection Act (USFSPA)?
Without a clarifying order, there is no way to determine the amount of what your award should be under the Act. Military retired pay is an entitlement based on the service member's rank and number of years of creditable service at the time of retirement. It is paid on a monthly basis and as such is not a fund which can be valued or divided as of some point in time, either before or after the member's retirement. Thus, it is not comparable to a company's private retirement plan, which can be identified as a specific amount and can be divided as of a particular date. The USFSPA requires that an award of a portion of a member's retired pay as property must be expressed in dollars or as a percentage of disposable retired pay. 10 U.S.C. 1408(a)(2)(C). Therefore, a clarifying order would be necessary in those cases where the award is not so expressed.

My award of a portion of the member's military retired pay as property is expressed as a formula with the numerator as the number of years we were married while the member performed military service creditable for retirement. I was told I had to get a clarifying order because this "number" was not provided in the court order. Why is this the case when our marriage and divorce dates, and the member's service entry date, were given in the court order?
An award of military retired pay as property expressed as a formula or hypothetical retired pay amount may be enforced under the USFSPA without a clarifying order only if the requirements of the proposed regulations (60 Fed. Reg. 17,507 (1995)(to be codified at 32 CFR pt. 63)(proposed April 6, 1995) are met. With regard to an award expressed as a formula, the only number supplied by DFAS will be the number of years of creditable service. All other information must be contained in the court ordered formula. With regard to a hypothetical for payment of a retired pay amount, the award must be based on at least 15 years of creditable service, and the only information DFAS will supply is the date of retirement. All other information, such as the member's hypothetical rank or years of creditable service at hypothetical retirement, must be contained in the court order.

Why does it take so long for me to begin to receive payments under the Act after I apply?
The USFSPA requires that your payments must begin not later than 90 days after effective service of your application for payments on the designated agent. 10 U.S.C. 1408(d)(1). This 90 day requirement gives DFAS enough time to process your application, and provide the member with the notice that the Act requires. The member has 30 days from the date the notice was mailed to provide evidence as to 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 only made once each month, the commencement of your payments must be coordinated with the monthly retired pay cycle.

I applied for enforcement of both my child support and retired pay property awards under USFSPA. My application for child support was honored, but my application for property payments was not. I was told that the reason was that the court lacked jurisdiction over the member. What's the problem? My divorce decree stated that the court had jurisdiction over the member.
The USFSPA has a separate jurisdiction requirement for enforcement of property awards. The Act states that the court must have had 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. 10 U.S.C. 1408(c)(4). The court may have had jurisdiction over an absent member by reason of some state statute, but that type of jurisdiction may not be the type that legally satisfies the requirement for purposes of the USFSPA. This special jurisdiction requirement does not apply to enforcement of alimony and child support awards.

I was married to my former spouse for 8 years while my former spouse was performing military service creditable for retirement. I was awarded a portion of my former spouse's military retired pay as property in our divorce decree. My application for property payments under the USFSPA was turned down, even though my former spouse waived the ten year requirement in our divorce decree. Why?
In order for a division of retired pay as property award to be enforced under the USFSPA, the former spouse must have been married to the military member for ten years or more during which the member performed at least 10 years of service creditable in determining the member's eligibility for retirement. 10 U.S.C. 1408(d)(2). This is a requirement to receive payments under the USFSPA, which cannot be waived by either party. However, retired members may always make the payment themselves. This requirement does not apply to enforcement of awards for alimony or child support.

My former spouse has been receiving military retired pay for several years, and has not paid me any of my portion of his retired pay as a property award. Can I collect any of the arrearages under USFSPA?
No, the USFSPA does not provide for the collection of arrearages of retired pay as property or alimony. Payments under the Act are prospective only 32 CFR 63.6.(h)(10)

However, child support arrearages set forth in the pertinent court order may now be collected under the Act. 10 U.S.C. 1408(d)(6). Regulations to implement this statute have not been published yet. Alimony and child support arrearages may also be collectible by garnishment under a different statute, 42 U.S.C. 659. A former spouse should consult his or her attorney for additional assistance regarding garnishments. This website also contains information regarding this topic.

What are the current requirements for service of documents, and certification of documents?
Court orders no longer need to be served by registered or certified mail, return receipt requested. They may now be served by facsimile or electronic transmission or by regular mail. Court orders must be copies of documents certified by the clerk of courts as to their authenticity within 90 days of effective service. Photocopies of certified documents are acceptable. Certified copies of court orders to enforce child support under USFSPA need not have been certified within 90 days of service.

Post Reply