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Why the USFSPA Is Unfair to Retired Veterans

The Uniformed Services Former Spouses Protection Act was passed more than 30 years ago and has faced criticism by numerous veterans organizations ever since. The law routinely blindsides divorced servicemen and women who, after divorce, suddenly find huge portions of the retirement funds they’ve earned sent to their former spouse.

The USFSPA was enacted in 1982 as a means to protect divorcing spouses of military personnel. The law’s intentions were, and still are, good.

Military spouses make enormous personal sacrifices as they often forgo their own careers to travel with their husband, or wife, around the globe while on deployment. They often never put in enough time at one company to earn a pension or build any sort of retirement fund.

Even as employment opportunities for women have dramatically increased over the past few decades, some sort of financial safety net is still necessary.

However, the USFSPA, which treats a veteran’s retirement pay as community property, goes too far and often ruins the financial stability of thousands of American veterans.

Military retirement benefits are considered community property

Military members are eligible for retired pay benefits after 20 years of service.

Prior to 1981, courts disagreed on whether these retirement benefits would be considered separate or community property. After the passage of the USFSPA, they were deemed community property, and thus that money is now eligible for division during a divorce.

In many states, the statutory presumption is that all marital property will be divided equally between each party. The court can adjust that division based on a number of factors, including the length of the marriage, the age and health of each party, etc.

How the USFSPA works

The USFSPA doesn’t guarantee a former spouse a portion of the military member’s retired pay, but rather gives state courts the right to distribute those benefits.

The USFSPA does not restrict the amount or percentage that the court may award to the former spouse. However, the Defense Finance and Accounting Service will not directly pay the former spouse more than 50% of the benefits. If ordered, the military member would be responsible for paying anything over that as if the two were civilians.

The USFSPA does not preclude the award of other support, such as alimony or child support.

The marriage only needs to have lasted at least 10 years during which the member performed at least 10 years of credible service for benefits to be subject to distribution (even though the military member is required to serve 20 years in order to receive those benefits in the first place).

The USFSPA gives equal weight to contributions

The USFSPA is littered with fairness issues.

For one, it considers the contributions to national security made by a military spouse equal to those of an actual military member.

As stated before, the sacrifices military spouses make are undeniably selfless, and even heroic, but should they be given as much credence as a soldier risking their life day after day on the frontlines?

Soldiers often face years of incredible hardship that results in severe physical, psychological and emotional damage. To say the spouse’s service was equal to that is, to say the least, a stretch.

Furthermore, military retirement is actually a continuation of active pay on a reduced basis. At any point, the military member could be recalled back into employment under penalty of law – a prospect the former spouse never faces.

Military retirees have no property rights to their retirement, but their ex-spouses do

Perhaps most confounding with the USFSPA is how it grants former spouses more protection than the actual military member.

A military member receiving retirement pay must always remain in compliance with the Uniform Code of Military Justice. They could face restrictions on employment and foreign travel or risk losing their benefits. If they are ever incarcerated, they could see their benefits reduced or terminated.

For a military member, these obligations persist for life.

Not so much for a former spouse. They can live wherever they want and commit numerous crimes without risk of losing their benefits, even though their service to the military and the military member end at divorce.

Moreover, because of the USFSPA, a former spouse can even remarry and still retain their right to their ex’s military retirement since the retired pay is considered marital property. This means that funds that Congress has appropriated as elements of the U.S. military compensation system are frequently shared by non-military personnel.

Other government and survivor benefits routinely terminate when former spouses remarry. Benefits paid to the ex-spouses of CIA personnel end upon remarriage prior to age 55 or 60.

The amount of retired pay a former spouse receives is based on the military member’s pay at retirement

The award of retired pay that a former spouse receives is based on the military retiree’s rank or pay grade when they retired, not at the time of divorce.

The justification for this is that the spousal influence extends for the life of an entire career. So if a Navy officer is a Commander upon divorce and advances to Rear Admiral over the next 15 years, the assumption is that the ex-spouse contributed to the officer’s career advancement.

Again, this seems like a hard case to make.

No formula leads to wide discrepancies

Finally, another fatal flaw of the USFSPA is that the law fails to lay out any sort of formula to determine a proper allocation of the benefits other than to say the spouse may be allocated “up to 50 percent.”

So this federal law is left open to interpretation to local courts and jurisdictions. This leads to wide discrepancies from state to state and even county to county in how the law is implemented.

We love to embrace our patriotism in the United States and brag about how much we “support our troops.” And yet this flawed, outdated law persists, denying many of our bravest men and women of the benefits they’ve earned by making some of the most difficult sacrifices imaginable.

Frank Murphy

Edited By Frank Murphy

Chief Compliance Officer
Frank Murphy

Frank Murphy is the Chief Compliance Officer and an Executive Partner at Cordell & Cordell. His responsibilities include oversight of the Firm’s compliance with Legal and Ethical obligations as well as contributing to the day-to-day operations of the Firm as an Executive Partner.

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