US Former Spouse Protection Act

While this article is intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.

by Barry J. Bernstein*

     The Uniformed Services Former Spouse Protection Act (USFSPA) is a federal law that protects an ex-spouse of a servicemember from losing some benefits.  It is not federal law that grants protection but allows state courts authority.  It not only provides for child support and alimony from a military retiree, but also may provide other benefits as well.  

     Primarily, USFSPA provides the Defense Finance and Accounting Service (DFAS) to honor a state court order in certain circumstances.  No federal law automatically entitles a former spouse to any portion of a military retiree's pay.  USFSPA authorizes state courts to divide military retired pay as a marital asset and to be disbursed directly to the former spouse.  It also provides a method of enforcing child support and current alimony payments from a military retiree. 

              In South Carolina, a division of retired pay is considered a property division, not alimony.  Therefore, it must follow the property division rules of USFSPA.  This requires the 10/10 rule.  The 10/10 rule requires there to be 10 years of marriage AND 10 years of qualifying military service.  Without the 10/10 rule, DFAS does not process it, nor will it make direct disbursements, so a Family Court can order the split, but it would have to happen between the parties, without automated payments by DFAS. 

            The USFSPA may permit former spouses to continue receiving commissary, exchange, and health care benefits after a divorce in certain cases.  Again, it is not automatic.  It has has limited application and requires affirmative steps to secure.  

                20/20/20 Rule.  20 years of creditable service/20 years of marriage/20 years overlapped.  Basically, you must show 20 years of service while the spouse was in the military for those 20 years.  If the former spouse meets the 20/20/20 rule, the former spouse may be entitled to health care, exchange, and commissary benefits.

         20/20/15 Rule.  If the parties the servicemember served 20 years and the marriage lasted for 20 years, but the period overlapping marriage and service was more than 15 but less than 20, they may be entitled to a transitional period of health care, with the option to purchase a policy afterward.

              Non 20/20/20 or 20/20/15 opportunity: Former spouses who do not fit the two options above are not entitled to any Tricare benefits after a divorce. But they are eligible for the DOD Continued Health Care Benefit Program, an at cost health care coverage program for 36 months of coverage until alternative coverage can be obtained, if done within 60 days of losing full military health care benefits.
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Future federal benefits to the “Ex” is possible, but not automatic, and may be very technical to ensure receiving!

    *Barry J. Bernstein, retired from the Army after 34 years as a Colonel.  He now practices law in South Carolina, advising clients and attorneys on military issues in South Carolina.​