It is beneficial to educate yourself about the Uniformed Services Former Spouses’ Protection Act, UFSPA — so what exactly is it?
Military pensions have to obey ERISA and they are subject to federal laws. In cases of ERISA, that means that the federal laws will supersede any state laws on any legal matters. Divorces are always heard in state courts and the laws of each state will determine what rights a former spouse has to military assets and marital property, including any pensions. In a civilian divorce in California, a spouse is entitled to receive one half of all community property, including pensions from employment. Prior to the passage of the USFPA, this was not the case in a military divorce. Now, since that law has been passed, the military pensions can be divided according to state law, so long as they are done properly. The first requirement is that the state court must have jurisdiction over the military pension.
Jurisdiction over the pension may be different than the jurisdiction over the divorce. For purposes of dividing a pension, the service member must reside in the state, but the residence cannot be based solely on their military assignment. You must be domiciled in that state, meaning that you must be living in that state at the time of the divorce, or must consent to the state court having jurisdiction.
How Will You Receive the Pension?
The payment of the pension is governed by the 10/10 rule. In order for a former spouse to receive their part of the pension directly from DFAS, they must be eligible under the 10/10 rule. This does not mean the spouse is not eligible to receive any funds from the retirement however, the same streamline of the process does not necessarily apply.
Keep This in Mind About USFPA
It should be noted that the USFPA does not apply to disability retirement and disability pay would not be subject to division under community property rights. However, it may be considered and included in any orders for child support or spousal support. If you are a service member or the spouse of a service member, it is imperative that you are working with a family law attorney that is able to provide you with guidance concerning the Uniformed Services Former Spouses’ Protection Act, since the judgment and the military retirement orders require specific language and forms to be completed during the final divorce process. You do not want to lose any rights that you would be entitled to, and you do not want to pay any more than you have to pay.
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