How Does the Uniformed Services Former Spouse’s Protection Act Affect the Outcome of a Divorce?
Ending a marriage is never easy, but negotiating the division of assets between a couple can make it even more difficult — especially if one spouse served or serves in the military. Most people are aware that those who are currently in or have been in the military are able to receive pension so long as they served at least 20 years.
Without knowing that a divorce is in their future, both spouses were more than likely relying on that pension to relax throughout their retirement, and losing it can be particularly worrisome to think about. If the couple divorcing are closer to reaching those retirement years, it can make the situation even more stressful. Luckily, there are laws in place to protect both spouses in the case of a military divorce.
How are military divorces different?
Divorces between regular families and military families are very similar for the most part, but there are some major differences to note.
In standard Texas divorces
In regular Texas divorces, each of the two soon-to-be spouses typically hire a divorce attorney to help fight for and divide their assets. Texas is actually considered a “community property state,” meaning that any property or debts couples accumulated during their marriage are subject to division during divorce. That includes houses, cars, bank accounts, and even pensions. Some ex-spouses may also want spousal maintenance, or alimony. Texas considers this to be voluntary and grants it on a case-by-case basis. However, there are some reasons why an ex-spouse may be more likely to get spousal maintenance, like:
- You’ve been married for 10 years. The length of a marriage can play a role in whether one spouse receives maintenance.
- One of you is disabled or financially insecure. If the spouse filing for maintenance proves that they are not financially able to take care of themselves, is disabled, is the primary caretaker of a disabled child, or lacks the minimum ability to provide basic needs, support may be more likely.
- You both agree to it. Both parties can agree that spousal maintenance is deserved and will be paid for over a certain period of time.
- Your spouse is an immigrant. If the spouse filing for alimony is a sponsored immigrant, they can request support until they become a U.S. citizen or have earned at least 40 credits of work history.
- It’s part of your prenuptial agreement. Texas law allows a couple to include parameters for “the modification or elimination of spousal support” in a premarital agreement.
- Your spouse was convicted of domestic violence. If a spouse has been convicted of family violence against the other spouse or their child within the last two years, regardless of the length of the marriage, he or she can be forced to pay spousal maintenance.
In military divorces
The same goes for military divorces as well, but there are a few additional laws that govern the division of property and determining alimony. Texas, along with the rest of the country, follows the Uniformed Services Former Spouses Protection Act (USFSPA). With this act, the ex-spouse remains eligible for certain things within the event of a divorce, but it also protects the person who served in the military. The Act gives courts the authority to treat military retired pay as a marital asset or property and therefore makes it susceptible to division during a divorce.
However, it must be expressed as either a fixed dollar amount or a percentage of disposable retired pay. The act also states that only the amount of money a military spouse would receive in pension if they were to retire on the day of their divorce is divisible, even if they end up earning more than that due to more years in the service.
Spousal maintenance can be paid for with retired pay
It is possible to get spousal maintenance (or child support) paid for directly from the former spouse’s military pension. However, it can be tricky to request on your own. You will need to get a court order saying you require the support, but it does not need to specifically say that the payments will be made using military pension. Make sure to work closely with a San Antonio military divorce attorney to help you get the compensation you and your family deserve.
Of course, the protection military spouses get in divorce does come with some requirements. For example, the couple must have been married for at least 10 years with 10 overlapping years of service before the divorce in order to even be eligible for their spouse’s military retired pay. The USFSPA also wants to ensure that military service members are protected, so the non-military spouse also cannot collect any more than 50% of the other’s disposable pay. The only exception for bumping it up to 65% is for when the retired military pay will be garnished for spousal maintenance or child support. The courts consider disposable pay to be the total retirement pay leftover after Veterans Affairs disability pay, federal debt repayments, fines, forfeitures, and Survivor Benefit Plan premiums.
Ex-spouses will need to wait until the military spouse retires to see that money
While it may seem daunting that your ex-spouse was awarded a percentage of your military pension at your divorce settlement, you will not have to worry too much. The USFSPA strictly forbids ordering military members to retire in order to divide their pension; so, no payments will need to be made to the other ex-spouse until retirement is entered and pension payments begin.
At Grable Grimshaw PLLC, our San Antonio military divorce attorneys want to help protect you all while making the divorce process as easy as possible. We can help you and your spouse identify your goals for your divorce and your family, now and in the future, and make sure you receive a fair settlement. Call our office or submit our contact form to schedule a consultation.