The maximum that can be paid to a former spouse under the USFSPA is 50 percent of a member’s disposable retired pay. In cases where there are payments both under the USFSPA and pursuant to a garnishment for child support or alimony under 42 U.S.C. 659, the total amount payable cannot exceed 65 percent of the member’s disposable earnings for garnishment purposes.
Disposable retired pay is gross retired pay less authorized deductions. The authorized deductions depend on the effective date of the parties’ divorce, dissolution, annulment or legal separation. If the date was on or after February 3, 1991, the authorized deductions are:
- Amounts owed to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay.
- Forfeitures of retired pay ordered by court-martial.
- Amounts of retired pay waived in order to receive compensation under Title 5 (federal civilian employment) or Title 38 (Department of Veterans Affairs) of the United States Code.
- The amount of the member’s retired pay under 10 U.S. Code Chapter 61 (Retirement or Separation for Physical Disability) computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list).
- Premiums paid as a result of an election under 10 U.S. Code Chapter 73 (Survivor Benefit Plan) to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired pay is being made pursuant to a court order.
If a former spouse was awarded a percentage of a member’s disposable retired pay, changes in the member’s authorized deductions will result in a change in the amount the former spouse receives.
Percentage awards will automatically receive a proportionate share of the member’s cost-of-living adjustments (COLAs), but COLAs are not available for fixed dollar amount awards, even if COLAs were awarded in the court order.
The right to payments under the USFSPA terminates upon the death of the member or former spouse, unless the applicable court order provides that the payments terminate earlier.
