USFSPA and Military Divorces in Virginia
If you or your spouse is in the military and you’re preparing for a divorce, you may have heard of the USFSPA. This is the Uniformed Services Former Spouses’ Protection Act. It is a federal law that addresses a variety of concerns that are specific to divorcing military couples. Military couples may be dealing with unique situations related to military retirement benefits, healthcare benefits, eligibility for the commissary, etc.
Through the USFSPA, the states are given authority to award military retirement pay to a former spouse. The Act also gives states direction on how to enforce this through the Department of Defense. Don’t make the mistake of assuming that the USFSPA automatically grants you access to your ex’s retirement accounts or vice versa. The court would need to issue an award that entitles you or your ex to the military spouse’s retirement pay in the final divorce decree.
If you or your soon-to-be-ex are active military, it’s important to retain an experienced Leesburg divorce attorney who can help protect your rights and ensure you receive the benefits you’re entitled to.
What is the 10 Year Test and How Does it Affect Retirement Pay?
When dealing with military divorces, there is something called the 10-year-test that you need to be familiar with. If the court declares your ex-spouse’s military retirement to be marital property, you might be able to receive payments directly from the Finance Center if you meet the criteria under the “10-year-test.” The eligibility requirements state that you must have been married to the military member for a minimum of 10 years and he or she must have performed a minimum of 10 years of military services that qualify for retirement purposes.
If you meet the requirements under the 10-year-test, then you will need to ask the court to prepare an order that states your divorce award can be made as direct payments from the military ex-spouse’s retirement pay.
What is the Process Once the Military Member Passes Away?
Typically, when the military ex-spouse passes away, the Act says the award would stop. However, there is a way that an ex-spouse may still receive some benefits if the plan carries a Survivor Benefit. If the military member elected that coverage, it would allow further income payments after the military member’s death. If the non-military spouse is the one who passes away, the payments will cease. There is no way to assign the payments to your estate or your heirs outside of a survivor benefit.
USFSPA Will Not Speed Up the Ex-Spouse’s Retirement
Some people wonder if receiving an award under the USFSPA means they can get the money prior to their ex’s actual retirement. The simple answer is no. There is a provision of the act that specifically forbids a state court from ordering a military member to retire early so the retirement pension can be divided during the divorce settlement.
Retaining a Leesburg Divorce Attorney
If you or your spouse is in the military, you should not necessarily proceed with filing for divorce on your own and unrepresented. The divorce process can be more complex when one or both spouses are in the military. The Leesburg divorce attorneys at Whitbeck Cisneros McElroy PC have years of experience handling divorces involving active military members. Contact our office at 703-997-4982 to schedule an initial consultation.