Congressional Research Service

Military Benefits for Former Spouses Congressional Research Service

In 1981, the Supreme Court ruled that the former spouse of a military member or retiree could not be awarded any share of that member's/retiree's retired pay as a part of a divorce property settlement in a community property state. In response, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) in 1982. Under the USFSPA, as amended, state courts can treat disposable military retired pay as divisible property in divorce cases. However, state laws may vary on these concepts. The USFSPA makes no assumption of such a division nor does it presume how much of a division should be made. In addition to possible receipt of retired pay, certain former spouses remain eligible to receive certain military benefits or privileges. Recent changes in other laws that affect the concurrent receipt of military retired pay and veteran disability pay may affect the amount of retired pay a former spouse receives. In other situations, later career and financial decisions made by military retirees may affect the availability of their retired pay. For example, military retirees who take federal civilian jobs and then retire from those jobs can waive their military retired pay and credit their military time to their civilian careers. In so doing, they eliminate their military retired pay, and thereby any share that might have been awarded to the former spouse. Since its inception, the USFSPA has remained contentious. Opponents of the law feel that it is unfair to servicemembers and should be modified or repealed. Proponents argue that the law protects the former spouse within nationally accepted standards. Some of the most frequently cited issues include (1) definition of disposable retired pay, (2) effects from new laws concerning concurrent receipt of military retired pay and veteran disability compensation, (3) interactions with other federal retirement systems, (4) effects in cases of early separation of servicemembers, and (5) treatment of benefits upon remarriage of a former spouse. As with the original provisions of the USFSPA, these and other proposed changes have been the source of great debate. Although legislation making various changes to the USFSPA has been introduced in the past, none of this legislation has allowed for retroactive change to settled cases.