DIVORCE & RETIREMENT PAY

Divorce &

Retirement

Pay

374th Airlift Wing

Office of the Staff Judge Advocate

Building 315, Airlift Avenue

This Brochure Includes:

 Amount Subject to Division

 Tax Implications of Division

 Direct Payment by DFAS

 Other Former Spouse Benefits

 Other Resources

The information in this brochure is of a general nature and is not intended

as a substitute for legal counsel.

Last update 31 March 2021

OTHER RESOURCES:

Defense Finance and Accounting Service

(DFAS):

https://www.dfas.mil/garnishment/usfspa/faqs.

html

Legal Assistance Hours:

By Appointment Only

Notary & POA Hours:

Monday–Thursday

0900-1100 & 1300-1500

Division of

Retirement Pay

Retirement pay is often the largest asset in

divorces where one party is an active or retired

military member. There is no federal right to

receive a portion of your spouse’s retired pay.

The passage of the Uniformed Services Former

Spouse’s Protection Act allows a state court to

treat military disposable retired pay as a marital

asset to be divided as support, alimony or prop-

erty.

State law controls whether or not retired pay

can be apportioned, and it determines the

method that will be used. However, all state

courts have allowed for the division of military

retired pay.

Additionally, a former spouse receives retired

pay pursuant to a court order only if and when a

military member retires. No authority (including

any court) may order a military member to retire

in order to provide retired pay to a former

spouse.

The following courts are authorized to divide

military pay: a court of competent jurisdiction of

any state, territory, or possession; any federal

court of competent jurisdiction; or any foreign

court of competent jurisdiction if there is a trea-

ty requiring the U.S. to honor court orders of the

particular foreign nation. Japan does not have

such an agreement with the U.S., which means

no Japanese court can award military retired

pay.

Jurisdiction for the division of retired pay as a

matter of property distribution is further limited

based on the member’s domicile in the territori-

al jurisdiction of the court, the member’s resi-

dence within the state other than because of

military assignment, or the member’s consent

to jurisdiction.

374th Airlift Wing

Office of the Staff Judge Advocate

Building 315, Airlift Avenue

Yokota Air Base, Japan

DSN Phone: 315-225-8069

DSN Fax: 315-225-7180

Commercial Phone from U.S:

011-81-42-552-2510-58069

Commercial Phone from off-base Japan:

042-552-2511 (Operator), Ext 58069

How can a former spouse get

direct payments from DFAS?

1. The Uniformed Services Former Spouse’s Protection

Act authorizes DFAS to make direct payments to a for-

mer spouse of a service member from retired pay in

response to court-ordered alimony, child support, or

division of marital property. For all direct payment

orders, there must be:

A. A final decree of divorce, dissolution, legal sepa

ration or court approval of a property settlement agree

ment; and

B. A statement that the military member’s rights un

der The Soldiers’ and Sailors’ Civil Relief Act were ob

served (if the member was not represented in court).

2. For direct payment of retired pay as part of a property

distribution, the following additional requirements ap-

ply:

A. A “10 year” test must be met: There must be at

least 10 years of marriage which overlap with 10 years

of creditable service toward retirement.

B. The court order must provide for payment

from military retired pay, and the amount must be a

specific dollar figure or specific percentage of dispos

able retired pay; and

C. The order must show that the court has jurisdic

tion over the member as discussed above

NOTE: There are no special requirements for a former

spouse to receive direct payment of child support and ali-

mony awards.

How does a former spouse

apply for direct payment?

The former spouse should complete a DD Form 2293 (Sep

2013), which is available at the Military Personnel Flight,

Customer Service Section (225-9913). The former spouse

should send the completed form along with a certified copy

of the divorce decree ordering a division of retirement pay

and other required/specified documents to the appropriate

address listed on the form.

What amount of retired pay

is subject to division?

Although a state court may divide retired pay in what-

ever way it wants, DFAS limits the portion of retired

pay it will pay directly to the former spouse. Other

methods of collecting additional retired may be pos-

sible under state law (for example, attaching the

military retiree’s property). For DFAS, only disposa-

ble retired pay is subject to division and a former

spouse cannot get more than 50 percent of the dis-

posable retired pay pursuant to a court order for

property settlement. Payment for up to an additional

15 percent of disposable retired pay is authorized to

honor garnishment orders for child support and ali-

mony.

Is there a formula to determine my

percentage?

There is no federal formula, however many states

use formulas similar to the one below:

When does payment terminate?

It terminates upon the death of the member or former

spouse, unless the applicable court order provides

that the payment terminate earlier. Additionally, a

court order may be modified in a subsequent court

proceeding.

A court may also order a spouse to make the former

spouse a beneficiary for a survivor benefit plan. The

beneficiary of this plan will receive an annuity upon

the death of the retired member.

What are the tax implications

of receiving direct pay?

Amounts paid directly to a former spouse by DFAS will

not be treated as retired pay earned by the retiree.

Direct payments of retired pay received from DFAS by

the former spouse are now subject to withholding.

DFAS will withhold taxes on amounts paid directly to

ex-spouses. Separate W-2 forms are issued to the

retiree and the former spouse.

Other Former Spouse Benefits

Former spouses are eligible for full medical, commis-

sary, and exchange privileges if married to a service

member for at least 20 years AND the service mem-

ber completed 20 years active duty AND the marriage

coincides with active duty for at least 20 years (20-20

-20).

If the marriage coincides with active duty for less than

20 years but at least 15 years (20-20-15), the former

spouse is entitled only to full health insurance for one

year, after which a conversion policy may be pur-

chased. Former spouses who do not meet either cri-

teria can purchase a group policy from Mutual of

Omaha. All these privileges are lost upon remarriage

of the former spouse.

*NOTE: A former spouse may still be the beneficiary

of Servicemembers’ Group Life Insurance (SGLI), un-

less the member changes that designation manually.

What is “disposable retired pay”?

Disposable retired pay is the total monthly retired

pay (gross) to which a member is entitled less cer-

tain authorized deductions. There are also special

rules concerning disability pay.

What happens if my ex-spouse also

receives disability pay?

Retired members who are moderately disabled can

receive benefits from the Veterans’ Administration

(VA). To receive these benefits, they must first

waive an equivalent amount of retired pay. These

VA benefits are not taxable and are not “disposable

retired pay.” The money waived to receive VA bene-

fits is excluded from the term “disposable retired

pay.”

Y = Length of overlap of marriage

and

military service, in months.

Z = Total time in military service, in

months.