At Brodsky Renehan Pearlstein & Bouquet, we recognize that when one spouse serves in the military, divorce circumstances may be unique. The federal law overlays create distinct rights, obligations, and pitfalls.
If you want to know how military divorce differs under federal law, we are here to help.
The short answer is that federal statutes, such as the USFSPA, impose unique rules regarding retired pay, jurisdiction, and benefit eligibility. As a result, state divorce law in Maryland still applies, but the federal layer can significantly influence key outcomes.
Below, we walk through what makes military divorce different, how the USFSPA works, and what you should know as you move forward.
What Makes A Military Divorce Different
When a service member is involved, several additional legal threads come into play:
- The Servicemembers Civil Relief Act (SCRA) may delay proceedings if the service member is on active duty, protecting their rights.
- The USFSPA (a federal law) permits state courts to treat military retired pay differently from civilian pensions.
- Benefits such as commissary access, healthcare, and survivor plans may end or change depending on your marriage/service overlap.
Due to this overlay, working with a Maryland military divorce attorney is crucial: while Maryland law governs the divorce, federal rules will shape major financial and benefit outcomes.
Federal Law At A Glance: The USFSPA
What the USFSPA Does
The Uniformed Services Former Spouses’ Protection Act (USFSPA) is codified at 10 U.S.C. § 1408. It accomplishes two key things:
- It authorizes state courts to divide a service member’s military “retired pay” as marital property (if state law allows) rather than treating it as purely separate property.
- It provides a mechanism for enforcement: when certain criteria are met, the former spouse can receive direct payments from the Defense Finance and Accounting Service (DFAS).
Important: the USFSPA does not create a federal automatic entitlement to military retired pay for the former spouse. The state court must first grant an award.
Key Limitations
- Only “disposable retired pay” is subject to division. That is the gross retired pay minus certain deductions such as waivers for VA disability, SBP premiums, and recoupments.
- The so-called “10/10 rule” applies for direct payment via DFAS: the parties must have been married for at least 10 years, and the service member must have at least 10 years of creditable service during the marriage. If those criteria are not met, the former spouse may still obtain a share, but must rely on the service member’s payment, not DFAS.
- There is a jurisdictional requirement for dividing retired pay: the state court must have appropriate jurisdiction over the service member (based on residence, domicile, or consent) other than solely by military assignment.
- Benefits such as commissary or military health care for the former spouse depend on a 20/20/20 rule (20 years of service, 20 years of marriage, and 20 years of overlap) or alternatives (20/20/15) for limited eligibility.
How This Plays Out Under Maryland Practice
When you come to us as a divorce lawyer in Maryland with a military divorce scenario, here are the practical issues we focus on:
- Asset division: Maryland remains an equitable distribution state. For a military retirement, you must determine what portion accrued during the marriage, what portion post-marriage, whether the 10/10 rule is met, and craft a court order with language sufficient for DFAS enforcement if applicable.
- Benefit eligibility: If the former spouse hopes to continue military health coverage or commissary/exchange access, we check actual service and marriage overlap to see if the 20/20/20 or 20/20/15 criteria are met.
- Timing and documentation: Because military service often involves deployment or relocation, the SCRA may invoke extra protections. The divorce decree must include precise language about retirement pay division (fixed dollar or percentage of disposable pay) to be enforced under the USFSPA.
- Survivor Benefit Plan (SBP): If part of your agreement or court order, SBP elections must be addressed at divorce to protect the former spouse in case of the service member’s death.
- VA disability and its impact: If the service member waives part of retirement pay to receive VA disability compensation, that deduction reduces “disposable retired pay” and thus affects what the former spouse may receive.
Practical Steps You Should Take
- Engage early: If one spouse is active duty or has recently retired, consult a Maryland military divorce attorney before signing any settlement agreement or filing in court.
- Gather service records: Months of service, retirement eligibility, overlap with marriage, waiver elections, and SBP status.
- Draft the order correctly: To trigger DFAS direct payment, use clear language, such as “X% of disposable retired pay” or “$X per month of disposable retired pay”. Generic language will delay or prevent enforcement.
- Confirm benefit eligibility: Don’t assume access to full military benefits post-divorce; check based on 20/20/20 vs 20/20/15.
- Review tax implications: Payments of retired pay as property are taxable to the recipient; disability compensation is non-taxable to the service member but may affect division.
- Consider revisiting revisions: If the service member’s status changes (duty station, retirement date, or VA disability election), you may want to revisit the settlement terms if possible.
Why Work With Us
At Brodsky Renehan Pearlstein & Bouquet, we bring deep experience handling military and civilian divorce intersections. Whether you are the service member or the spouse of one, we handle the nuances of the USFSPA, SCRA protections and Maryland divorce law together. We help the parties avoid pitfalls in document drafting, enrollment deadlines, benefit terminations and ensure your rights are protected.
Call us today to schedule a consultation with our Maryland military divorce lawyer and get the clarity you need.
Final Thoughts
A military divorce may be different from a civilian Maryland divorce; federal law adds layers that impact property division, benefit continuation, and enforcement. Understanding the USFSPA and its limits is vital to avoid surprises. With proper legal guidance, you can navigate this complexity confidently.
Frequently Asked Questions
Does the USFSPA guarantee a former spouse a portion of the service member’s retired pay?
No. The USFSPA authorizes state courts to divide military retired pay, provided that the court order specifically grants it. The law does not automatically grant a share.
What happens if the parties do not satisfy the 10/10 rule?
If the 10/10 rule (10 years of marriage overlapping 10 years of service) is not met, a former spouse may still receive a portion of the retired pay under state law, but they cannot receive direct payment from DFAS under the USFSPA.
Can a former spouse keep military health care and commissary privileges?
Only if specific criteria are met: generally 20 years of marriage, 20 years of service and 20 years overlap (the “20/20/20” rule). If not met, benefits may be limited or transition coverage required.
How is “disposable retired pay” defined and why does it matter?
Disposable retired pay is the service member’s retired pay minus deductions such as VA disability waivers, SBP premiums, recoupments, forfeitures. Only disposable retired pay is divisible under the USFSPA.
Do active duty status and deployment delay the divorce process?
Yes. Under the SCRA, a service member on active duty may request a stay of proceedings, and a court must consider active duty absence before entering default judgments or moving forward.
If you are facing a military-divorce situation and want to explore your rights or settlement options in Maryland, let us review your case and help you form a plan aligned with federal and state rules.
