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How does the Uniformed Services Former Spouses' Protection Act work?

A military family makes sacrifices that civilian families often do not have to. When it comes to military divorce, certain protections are in place by law for spouses of service members, depending on the number of years of marriage and service time.

In a military divorce, the service member's retirement pay or pension can be considered shared marital property in some cases, and is divided as property. In some cases, the spouse of the service member also qualifies for continued health care benefits.

These protections fall under the Uniformed Services Former Spouses' Protection Act (USFSPA). The law does not automatically give the former spouse retirement pay or continued health coverage, but rather has guidelines for when the former spouse has a right to these items.

How does a former spouse qualify to receive part of the retirement pay?

For the court to divide the service member's retirement pay as marital property under the act, the former spouse must have been married to the service member for at least 10 years, during which time the member served the military for at least 10 years. There is a limit of 50 percent of the service member's disposable retired pay that can be paid to a former spouse.

The former spouse can qualify to receive health care benefits, commissary and exchange if he or she has been married to the service member for at least 20 years, during which time the member served the military for at least 20 years. This allows the former spouse to receive full benefits after the divorce is final. If the service member served for 20 years but the 20-year marriage only overlapped 15 years of service, the former spouse can qualify for full military medical benefits for a temporary period. This period lasts for one year after the divorce.

If the former spouse does not meet the marriage length requirements stated above, they can be eligible for the continued health care benefit program, which is a temporary health care coverage program. It is based on a premium and lasts for 36 months, to give the former spouse time to find other health care coverage. The former spouse has to enroll in the program within 60 days of the divorce.

What about child support and alimony?

Child support and alimony payments that are ordered by the court can come out of the service member's retirement pay, without any requirement for length of marriage.

U.S. Congress passed the Uniformed Services Former Spouses' Protection Act in 1982. It was in response to a 1981 U.S. Supreme Court ruling that stated military retired pay cannot be treated as community property in divorce cases. The USFSPA allows state courts to treat retirement pay as property in military divorces if they choose to.

How do I choose an attorney during a military divorce?

Because certain factors can make military divorce more complex than civilian divorce, it is a good idea to seek an attorney experienced in the area of military family law. Knowledge of both the USFSPA and the Servicemembers Civil Relief Act (SCRA), which protects service members, will help make sure everyone's rights are upheld during the divorce.

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Jamie Graham & Associates, PLLC
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San Antonio, TX 78205

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