How the Uniformed Services Former Spouses’ Protection Act Affects a Divorce
One of the more complex areas of divorce concerns asset division. If you and your spouse have a retirement account, the money in that account will be divided between you. The Uniformed Services Former Spouses’ Protection Act (USFSPA) is what allows a court to treat the retirement funds of a service member the same way it would treat the funds of a civilian – namely, that the service member’s retirement fund can be divided as marital property if a couple chooses to divorce. It also “provides a method of enforcing these orders through the Department of Defense,” as opposed to through a Tennessee family court judge.
The USFSPA does not force a judge to divide a military pension, however; it simply gives him or her the right to treat it as marital property. Tennessee treats most assets acquired during marriage as “marital.”
What else does the USFSPA affect?
The Act can also be cited as a method to:
- Collect child support that is in arrears
- Enforce current alimony or child support orders
- Enforce final divorce decrees and legal separations
- “Allow former spouses to continue receiving commissary, exchange, and health care benefits”
- Enforce Survivor Benefit Plans
It is important to note that whether or not a court chooses to treat military retired pay as married property can change from state to state. In Tennessee, our family courts believe that it is, under the Act. In fact, a Tennessee court can even require that a service member retain his or her civilian spouse as the beneficiary of a Survivor Benefit Plan under that same Act, even after the couple divorces.
Your rights as a service member
The USFSPA is designed to protect spouses of service members – but service members have rights and protections in place, too. The Servicemembers Civil Relief Act (SCRA) allows for a stay in civil proceedings (such as a divorce) for men and women on active duty. They stay may not be able to keep your retired pay from being divided, but it will give you and your military divorce lawyer time to work on your case.
The law also requires that “for orders dividing retired pay as property to be enforced under the USFSPA, a member and former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service creditable towards retirement eligibility (the 10/10 rule).” Thus, a couple married for six years with one spouse serving in the military for four years will not be able to enforce the division of military retirement pay as part of a divorce. The Court may still award a portion of the money as a “marital asset” BUT the DFAS will not enforce it by withholding the money from the pay. (This distinction does not apply to alimony or child support.)
Military families face unique challenges; LaFavor & Slaughter can help you through them. To speak with a skilled Knoxville military divorce attorney, please contact our firm and schedule an appointment.
As the Managing Attorney with LaFevor & Slaughter, Jason R. Hines handles new client consultations, strategic planning and implementation and represents clients in all the Firm’s practice areas.
As an attorney practicing law in Tennessee since 2009, Jason has represented clients from all walks of life in a wide range of cases in the State and Federal Courts of Tennessee. His practice areas include divorce, family law and immigration.