Military Benefits for Former Spouses:
Legislation and Policy Issues
Updated May 20, 2021
Congressional Research Service
https://crsreports.congress.gov
RL31663

Military Benefits for Former Spouses: Legislation and Policy Issues

Summary
In 1981, the Supreme Court ruled that the former spouse of a military member or retiree could not
be awarded any share of that member’s/retiree’s retired pay as a part of a divorce property
settlement in a community property state. In response, Congress enacted the Uniformed Services
Former Spouses’ Protection Act (USFSPA) in 1982. Under the USFSPA, as amended, state courts
can treat disposable military retired pay as divisible property in divorce cases. However, state
laws may vary on these concepts. The USFSPA makes no assumption of such a division nor does
it presume how much of a division should be made. In addition to possible receipt of retired pay,
certain former spouses remain eligible to receive certain military benefits or privileges.
Changes in laws that affect the concurrent receipt of military retired pay and veteran disability
pay may affect the amount of retired pay a former spouse may receive. Later career and financial
decisions made by military retirees may also affect the amount of retired pay that can be divided.
For example, military retirees who take federal civilian jobs and then retire from those jobs can
waive their military retired pay and credit their military time to their civilian careers. In so doing,
they eliminate their military retired pay, and thereby any share that might have been awarded to
the former spouse.
Since its inception, the USFSPA has remained contentious. Opponents of the law feel that it is
unfair to servicemembers and should be modified or repealed. Proponents argue that the law
protects the former spouse within national y accepted standards. Some of the most frequently
cited issues include (1) definition of disposable retired pay, (2) effects from new laws concerning
concurrent receipt of military retired pay and veteran disability compensation, (3) interactions
with other federal retirement systems, (4) effects in cases of early separation of servicemembers,
and (5) treatment of benefits upon remarriage of a former spouse. As with the original provisions
of the USFSPA, these and other proposed changes have been the source of great debate.
Although legislation making various changes to the USFSPA has been introduced in the past,
none of this legislation has al owed for retroactive change to settled cases.
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Military Benefits for Former Spouses: Legislation and Policy Issues

Purpose
This report provides a general discussion of legislative provisions and proposals relating to the
military benefits for former spouses. It is not designed to answer detailed questions about specific
issues arising in individual cases. Thus, it does not deal with case law nor does it apply legal or
judicial interpretations of enacted statutes to specific situations.
Questions that this report seeks to answer include the following:
 What benefits can former spouses of members or retirees of the uniformed
services receive under law?
 What role do the services play in facilitating delivery of those benefits? What
practical problems arise in the implementation of and service involvement in
claims on those benefits?
 How does the current system for a divorce-related division of military retired pay
work?
These frequently asked questions reflect confusion and controversy over social policy and
economic equity issues. The administrative and legal implementation has proven complex, due to
the large number of couples affected and the variety of circumstances surrounding their military
service and divorce.
The Uniformed Services Former Spouses Protection
Act (USFSPA)
Prior to 1981, state courts disagreed as to whether they were authorized or constrained by federal
legislation or federal legal precedent in dividing military retired pay in divorce-related property
settlements. Inconsistencies among the states and perceptions of unfairness and arbitrariness were
common grounds for criticism of the system.
The Supreme Court ruled (6-3) on June 26, 1981, in the case of McCarty v. McCarty,1 that the
former spouse of a military member or retiree could not be awarded any share of that
member’s/retiree’s retirement pay as a part of a divorce property settlement in a community
property state,2 because then-current federal law did not authorize the treatment of military retired
pay as divisible property in such a settlement.3 In reaching this ruling, however, the court did not
necessarily endorse its social impact. Justice Blackmun (writing for the majority), virtual y
invited Congress to consider a change in the law to al ow such a division to be made:
We recognize that the plight of an ex-spouse of a retired member is often a serious one.
See Hearing on H.R. 2187, H.R. 3677, and H.R. 6270 before the Military Compensation
Subcommittee of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980).
That plight may be mitigated to some extent by the ex-spouse’s right to claim Social
Security benefits, cf. Hisquierdo, 439 U.S. at 590, and to garnish retired pay for the
purposes of support. Nonetheless, Congress may well decide, as it has in the Civil Service

1 453 U.S. 210 (1981).
2 T he McCarty case was initiated in California, one of eight community property states at the time. Other community
property states included Arizona, Idaho, Louisiana, Nevada, New Mexico, T exas, and Washington.
3 Generally, a community property state is defined as one in which all property earned by either the husband or the wife
during the course of the marriage is treated as jointly held property for the purposes of a settlement.
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and Foreign Service contexts, that more protection should be afforded a former spouse of
a retired servicemember. The decision, however, is for Congress alone. We very recently
have reemphasized that in no area has the Court accorded Congress greater deference than
in the conduct and control of military affairs.4
Congress responded by enacting the Uniformed Services Former Spouses’ Protection Act in
September 1982.
What Does the USFSPA Authorize?
The USFSPA has five main provisions.
1. It enables state courts to treat disposable military retired pay as divisible property
in divorce cases.5
2. It al ows direct payments by the uniformed services (Army, Navy, Marine Corps,
Air Force, Space Force and Coast Guard) of up to 50% of a member’s or former
member’s disposable retired pay to the former spouse if the settlement involved is
in compliance with the USFSPA.
3. It al ows for the enforcement of alimony and child support (in conjunction with
previously enacted provisions of law providing for such enforcement regarding
military personnel in 42 U.S.C. §659).
4. It al ows a military member or retired member to voluntarily designate a former
spouse as a beneficiary under the military Survivor Benefit Plan. This provision
was later modified by Congress to al ow state courts, under certain conditions, to
order a member or retiree to provide military Survivor Benefit Plan benefits to a
former spouse.6
5. It defines which former spouses are eligible to secure access to military-
sponsored medical care benefits (e.g., care at uniformed service facilities), as
wel as commissary and exchange privileges.7
The USFSPA currently al ows state courts to consider disposable military retired pay (excluding
disability retired pay) as divisible property in a divorce settlement, and establishes procedures
whereby a former spouse can receive direct payment of a part of that retired pay directly from the
Defense Finance and Accounting Service (DFAS).8 The distinction between USFSPA provisions
that authorize courts to divide retired pay, and provisions that al ow for the direct payment of
divided retired pay, has sometimes led to confusion among beneficiaries. Under the USFSPA,

4 453 U.S. 210 (1981).
5 Disposable retired pay is retired pay less withholdings, disability pay the member is entitled to on the date the
member retires or was placed on the temporary disability retirement list, and Survivor Benefit Plan deductions. For
divorces occurring after November 5, 1990, “disposable retired pay” is total monthly retired pay less amounts owed to
the United States for previous overpayments an d other recoupments required by law, amounts deducted as a result of
forfeitures of retired pay ordered by a court -martial, and amounts waived in order to receive compensation under title 5
U.S. Code (civil service) or title 38 U.S. Code (veterans’ benefit s).
6 For more information on the military Survivor Benefit Plan, see CRS Report R45325, Military Survivor Benefit Plan:
Background and Issues for Congress, by Kristy N. Kamarck and Barbara Salazar T orreon .
7 For more information on the Military Health Services System, see CRS Report R45399, Military Medical Care:
Frequently Asked Questions, by Bryce H. P. Mendez.
8 When enacted, each service (Army, Navy, including the Marine Corps, and Air Force) had their own pay services.
Since then, DOD’s pay operations have been consolidated under the Defense Finance and Accounting Service (DFAS).
DFAS Cleveland handles matters related to retired pay, to include USFSPA.
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state courts are free to order the division of disposable retired pay in any manner congruent with
state law. The USFSPA does not direct state courts to divide retired pay or to award a former
spouse a certain percentage of disposable retired pay. Whether such a division is made, and if
made, what percentage is awarded to the former spouse is left to the discretion of the court in
each individual settlement.
The secretary of the particular military department (Army, Navy, Air Force, and the Secretary of
Homeland Security for the Coast Guard) can make direct payments of a portion of that pay to a
former spouse.9 These payments are managed by DFAS.10 In order to be eligible for direct
payment, a former spouse must have been married to the servicemember or retiree at least 10
years, during which the servicemember or retiree must have served at least 10 years of creditable
military service. In addition, the awarded division of military retired pay must be incorporated in
a court-ordered, -ratified, or -approved divorce-related settlement. These provisions of the
USFSPA pertain only to property settlements and do not affect provisions for alimony or child
support. The USFSPA does not relieve the servicemember or retiree from the obligation to pay
court-ordered alimony and/or child support payments (which are distinct from a divorce property
settlement).
The service secretary concerned is required to begin payments to the former spouse within 90
days after the receipt of a valid court order. If the member has not yet retired from the Armed
Forces at the time of the court order, the service secretary must begin payments not later than 90
days after the member becomes entitled to retired pay. The USFSPA “does not authorize any court
to order a member to apply for retirement or retire at a particular time in order to effectuate any
payment.”11
What is the 10/10 rule?
When discussing military divorce settlements some people refer to the 10/10 rule. The 10/10 rule only affects
how the former spouse receives the divided retired pay. Former spouses who are eligible under the 10/10 rule
may receive direct payments from DFAS. An eligible former spouse is one who was married to the
servicemember or retiree for at least 10 years, during which the servicemember or retiree served at least 10
years of creditable military service. Eligibility to receive direct pay under this rule is not automatic; the award of
military retired pay stil must be incorporated in a court-ordered, -ratified, or -approved divorce-related
settlement.
Former spouses who do not meet the 10/10 criteria may stil be awarded a portion of the servicemember or
retiree’s retired pay by the court. However, in this case, the retired servicemember receives his or her entire
retired pay from DFAS and he or she arranges for the court-ordered amount to be distributed to his or her
former spouse.
Under the USFSPA, the amount of court-ordered retired pay that the services can pay to a former
spouse under the direct payment provisions is limited to 50% of disposable retired pay or up to
65% if other provisions for garnishment such as alimony or child support (under 42 U.S.C. 659)
exist. When the servicemember has more than one former spouse, payment orders are handled by
the secretary on a first-come, first-serve basis. The combined amount of retired pay paid out to
one or more ex-spouses through the direct payment mechanism cannot exceed 65% of disposable

9 T he Marine Corps falls under the Department of the Navy, and the Space Force falls under the Department of the Air
Force.
10 For more information on how DFAS handles pay to former spouses under USFSPA, see http://www.dfas.mil/
garnishment/usfspa/legal.html.
11 10 U.S.C. §1408(c)(3).
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retired pay, but this does not relieve the member or retiree of an obligation to pay any additional
sums which are awarded to a former spouse.
When conflicting orders exist (e.g., retired pay subject to more than one court order), the USFSPA
instructs the secretary concerned to send the amount specified in the lesser of the two conflicting
orders to the former spouse(s), retain the difference between the two (up to 50%), and send the
balance to the retiree. Upon resolution of the conflicting order, the secretary is to al ocate the
retained amount in accordance with the USFSPA.
Final y, the USFSPA does not al ow a court to consider military retired pay in a divorce-related
property settlement unless the court has jurisdiction over the servicemember or retiree by reason
of his/her
 residence other than military assignment in the territorial jurisdiction,
 domicile in the territorial jurisdiction of the court, or
 consent to the jurisdiction of the court.
Survivor Benefit Plan: Benefits for Divorced Spouses
In addition to providing for the division and direct payment of military retired pay, the USFSPA
al ows divorced spouses of military members or retirees to draw benefits from the DOD Survivor
Benefit Plan (SBP) under certain circumstances. The SBP, established by P.L. 92-425, September
21, 1972, provides financial protection for the surviving dependents of deceased military
members and retirees.12 Al personnel of the uniformed services who retire on or after September
21, 1972, are automatical y enrolled in the SBP unless they elect not to participate. In 2001,
Congress extended SBP coverage to personnel who die while serving on active duty. Such
coverage was extended to the survivors of those individuals who die while on active duty, on or
after September 10, 2001.13 Changes concerning SBP coverage can be made after the initial
agreement only if both parties to the divorce agree to it. Any elections other than the maximum
protection for a spouse made after March 1, 1986, can take place only if the spouse concurs.14
Under the plan, retired pay is reduced to provide for the cost of a survivor benefit. For divorces
that occurred prior to November 14, 1986, the USFSPA al owed members or retirees to
voluntarily elect to name a former spouse as beneficiary. If a divorce occurred on or after
November 14, 1986, however, a court may order a member or retiree to provide SBP protection as
part of or incident to a divorce. According to changes in law implemented by the FY1987
National Defense Authorization Act, “A court order may require a person to elect (or to enter into
an agreement to elect) ... to provide an annuity to a former spouse (or to both a former spouse and
child).”15 This language does not require courts to make such an order, but gives them the
freedom to do so.
The National Defense Authorization Act for Fiscal Year 2016 amended the Survivor Benefit Plan
(SBP) statute to provide a member who had made an election to provide SBP or Reserve
Component SBP (RCSBP) coverage for a former spouse the ability to cover a subsequent spouse
if the former spouse dies. The legislation included an open season (November 25, 2015, to

12 Upon the death of a military member/retiree, income from the military ceases.
13 P.L. 107-107.
14 U.S., Congress, Senate, Conference Committee, FY1986 Department of Defense Authorization Act. S.Rept. 99 -118,
S. 1160, 99th Cong., 1st Sess., July 29, 1985: 98.
15 10 U.S.C. §1450(f)(4).
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November 24, 2016) to accommodate members whose covered former spouse beneficiaries were
already deceased when the legislation was enacted.16
Other Benefits for Former Spouses of Retired Members
The USFSPA and subsequent amendments also authorized military medical benefits and
exchange and commissary privileges for certain un-remarried former spouses of military
members or retirees.17 Eligibility for these benefits depends on both the years of marriage and
service by the member or former member and, in certain instances, the date of the final decree of
divorce, dissolution, or annulment. Each set of requirements for eligibility is treated separately
here.
When original y enacted in 1982, the USFSPA provided that, if a member had been married for at
least 20 years to one spouse, during which time the member performed at least 20 years of
creditable military service, the un-remarried former spouse was eligible for military commissary
and exchange privileges, as wel as military medical benefits, if he or she did not have medical
coverage under an employer-sponsored health program. This restriction (known popularly as the
20/20/20 restriction) was considered unfair by some because it excluded many former spouses
who met most, but not al , of the time requirements. In some cases, for example, the marriage
could have lasted 20 years, the servicemember had served 20 years, but the two did not overlap
by the required 20 years.
Legislation enacted in 1984 (as subsequently modified) established benefit eligibility provisions
for former spouses who do not meet the 20/20/20 restriction (the benefits of those who do meet
the 20/20/20 restriction were not affected by these provisions).18
First, it provided full eligibility for medical care for former spouses whose final decree of
divorce, annulment, etc., was dated before April 1, 1985, and who meet the eligibility
requirements, except for the fact that their minimum of 20 years of marriage and 20 years of
creditable service overlapped by only 15 years or more, and by less than 20 years (i.e., they meet
a 20/20/15 restriction).
Second, it provided a transitional medical care program for former spouses who met the
eligibility requirements and the 20/20/15 restriction, but whose final decree of divorce was April
1, 1985, or later. These former spouses were eligible for transitional care in the military medical
care system for two years, followed by the right to convert to a private health insurance plan with
the identical restriction on remarriage and other medical coverage.19 Legislation enacted in 1988
limited the period of transitional medical care to one year.20
Third, the 1984 legislation provided that former spouses who were otherwise eligible, but who
did not meet the minimum 20/20/15 restriction would be eligible for coverage under a specificaly
formulated private health care plan, with responsibility for premium payments for this plan to be
determined by the court in the divorce property settlement.21

16 For more information, see Defense Finance and Accounting Service (DFAS) Former Spouse SBP Coverage Open
Season: https://www.dfas.mil/retiredmilitary/provide/sbp/FS-SBP-open-season-16.html.
17 See 10 U.S.C. §1062 and 10 U.S.C. §1072(2)(F and G).
18 P.L. 98-525, Section 645(a), September 27, 1984.
19 See 10 U.S.C. §1086a.
20 See P.L. 100-456 §651; P.L. 101-189 §731.
21 See 10 U.S.C. §1078a.
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Reopening Court Cases
The legislative history of the USFSPA indicates that it was the intent of Congress that the direct
payment provision of the USFSPA became effective on June 26, 1981, and would not be applied
to cases finalized before that date.
Although the Conference Report contains no prohibition against courts reopening decisions
before [June 26, 1981], the conferees agreed that changes to court orders finalized before
the McCarty decision should not be recognized if those changes were effected after the
McCarty decision (and before the effective date of the new title X) to implement the
holding in that decision (for example, a modification setting aside a pre-McCarty division
of military retired pay).22
Thus, if a divorce were settled two weeks before the McCarty decision and the member retired
after McCarty, divisibility of retired pay (and other provisions) would, arguably, not apply unless
the original decree al owed for a division of retired pay. However, the applicability of the
USFSPA, in general, to reopened cases, remained ambiguous.
Congress has no direct control or jurisdiction over state courts, which handle almost al domestic
relations law (separation, divorce, adoption, etc.). However, Congress does have control over the
administration and disbursal of federal compensation and benefits related to domestic relations
law. Congress has indicated its intention that federal law governs the treatment of these benefits
in divorce-related settlements.
The U.S. Comptroller General has ruled that certain former spouses, who have their pre-McCarty
divorces reopened on or after June 26, 1981, may be ineligible to receive direct payment from the
military services.23 Nevertheless, despite congressional language to the contrary, some states
continued the practice of reopening pre-McCarty divorces in order to al ow for a division of
retired pay. The National Defense Authorization Act for Fiscal Year 1991 placed explicit limits on
the ability of state courts to consider retired pay as property in the reopening of a pre-McCarty
divorce which did not provide for such a division.24 In its report on this legislation, the House
Armed Service Committee stated the following:
The committee is concerned because some state courts have been less faithful in their
adherence to the spirit of the law. The reopening of divorce cases finalized before the
Supreme Court’s decision in (McCarty v. McCarty) that did not divide retired pay
continues to be a significant problem. Years after final divorce decrees have been issued,
some state courts, particularly those in California, have reopened cases (through partition
actions or otherwise) to award a share of retired pay. Although Congress has twice stated
in report language that this result was not intended, the practice continues unabated. Such
action is inconsistent with the notion that a final decree of divorce represents a final
disposition of the marital estate.
Section 555 would provide that a court may not treat retired or retainer pay as property in
any proceeding to divide or partition such pay of a member as the property of the member

22 U.S., Congress, House, Conference Committee, Department of Defense Authorization Act for Fiscal Year 1983,
H.Rept. 97-749, August 16, 1982: 167-168.
23 In a case before the Comptroller General, a pre-June 26, 1981, divorce settlement did not divide military retired pay;
the settlement was modified after June 26, 1981 , to include a division of military retired pay. T he efforts of the former
spouse to receive direct payment were rejected by the Army. T he Comptroller upheld the Army’s decision to reject the
request for direct payment because (1) the original decree denied a division of retire pay and (2) the original decree
occurred before June 26, 1981. Matter of: Phyllis M. T harp B-229440 68 Com p. Gen. 116 (1988). “ Direct Payment of
Retired Pay to Divorcees Limited,” Army Times, January 16, 1989: 16.
24 P.L. 101-510, 104 Stat. 1485, November 5, 1990, codified at 10 U.S.C. §1408(c)(1).
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and his spouse if a final decree of divorce, dissolution, annulment or legal separation
(including court ordered, ratified, or approved property settlement incident to such a
decree) was issued before the McCarty decision and did not treat retired pay as property of
the member and the member’s spouse or former spouse. This provision would apply to
judgments issued before, on, or after the date of enactment [November 5, 1990] of this Act,
but only with respect to any requirement to make payments pursuant to such judgments
after the date of enactment. Thus, individuals divorced before the McCarty decision who
have their cases reopened would not be relieved of the obligation to make payments u ntil
after the effective date of this Act.25
Implementation of the Existing Law and
Related Measures
Implementation of the provisions of the USFSPA has often been confusing and frustrating for
those involved. Uneven implementation of the law, especial y with respect to the direct pay
provisions, and the changing definition of disposable pay as the basis for division of retired pay
have been contributing factors. In addition, changes to other laws affecting the treatment of
military retired pay with respect to other forms of compensation have also complicated the
implementation of USFSPA.
In 1984, the U.S. General Accounting Office (GAO, now cal ed the Government Accountability
Office) published a report that examined the implementation of the USFSPA.26 The GAO also
noted that many of the early implementation problems were related to inconsistent language used
in court-ordered settlements. Over time, changes to the law and actions by the courts have
mitigated some of these issues.
Concurrent Receipt of Retired Pay and Disability Compensation
In recent years, Congress has addressed an issue concerning the payment of military retired pay to
retirees who qualify for disability compensation from the Department of Veterans Affairs (VA).
Disability payments are excluded from the definition of disposable retired pay. Provisions
restricting “dual compensation” have been in effect since 1891, when Congress enacted language
prohibiting the concurrent receipt of a disability pension in addition to pay for past or current
service.27 As modified in 1941, the law prevented the concurrent receipt of both military
nondisability retired pay and veteran’s disability compensation. For those eligible for both,
military retired pay was offset or reduced, dollar for dollar, by VA disability benefits. For
example, if a retired servicemember was eligible for $1,000 per month in retired pay and $400 in
VA disability benefits, the servicemember would receive $1,000 in retired pay plus $400 in
disability, minus a $400 reduction in retired pay, for a total of $1,000 before taxes. While retired
pay is taxable, VA disability benefits are tax free, so the retiree would only be taxed on the $600
of retired pay.

25 U.S. Congress, House, Committee on Armed Services, National Defense Authorization Act for Fiscal Year 199 1,
H.Rept. 101-665, H.R. 4739, August 3, 1990: 279; P.L. 101-510, 104 Stat. 1569, November 5, 1990.
26 U.S. General Accounting Office, Implementation of the Uniformed Services Former Spouses’ Protection Act,
October 24, 1984, GAO, NSIAD-85-4, B-214076.
27 See CRS Report R40589, Concurrent Receipt of Military Retired Pay and Veteran Disability: Background and
Issues for Congress, by Kristy N. Kamarck and Mainon A. Schwartz.
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For the purposes of USFSPA, the definition of disposable retired pay excludes VA disability
benefits.28 As such, a retiree eligible for disability compensation could choose to waive retired
pay in the amount of the disability benefit and, thereby, reduce or eliminate the amount of retired
pay available for division in a property settlement.
The FY2003 and FY2004 National Defense Authorization Acts (NDAAs) introduced two forms
of concurrent receipt that al owed eligible servicemembers to receive both retired pay and certain
disability compensation. These programs are known as Combat-Related Special Compensation
(CRSC) and Concurrent Retirement and Disability Program (CRDP). CRSC is special disability
compensation paid to those with combat-related disabilities and a VA disability rating of at least
10%. Servicemembers must apply for this compensation and it is not taxable as income. CRSC is
not longevity retired pay; it is an additional form of compensation for certain members of the
Armed Forces.29 Thus payments are not divisible as property under USFSPA. CRDP is
automatical y paid to those with any service-connected disability that is (1) rated at least 50% or
greater by the VA, and (2) have 20 years of qualifying military service or were retired under the
Temporary Early Retirement Act (TERA). CRDP was phased in over a period of 10 years and
was fully implemented in 2014.30
During the CRDP phase-in period, some eligible retirees saw their retired pay increase. For a
retiree who is divorced and whose spouse has been awarded a percentage of the retired pay, the
former spouses may also have seen an increase in the dollar amount received. Conversely, for
those former spouses who were awarded a specific dollar amount of retired pay, changes in the
total amount received by the retiree under CRDP may not have affected the amount the former
spouse receives.
However, certain retired servicemembers with less than a 50% disability rating are not eligible for
CRDP and are stil required to waive retired pay in order to receive VA disability pay. This can
result in reductions in the amount of money that a former spouse can claim in a divorce. In cases
where the servicemember has waived retirement pay for non-divisible disability pay, some courts
have ruled that the member must make up the difference in additional payments to the former
spouse. However, a May 2017 Supreme Court ruling said that the lower courts cannot order a
veteran to make the extra payments to a former spouse.31 Advocates for spouses of veterans have
noted that this ruling could have a negative financial impact on former spouses who rely on
spousal support. Of particular concern for some are former spouses who had put their own careers
on hold to be caregivers for a disabled spouse.32
If a retired servicemember applies and is eligible for CRSC, it is possible that part or al of
disposable retired pay could be offset. This may put the former spouse in a situation where,
regardless of the percentage of the court award, there is zero disposable retired pay to be divided.
In addition, CRSC payments are retroactive to the date of filing or the enabling legislation on
January 1, 2003, whichever is later. This means that if the former spouse had been receiving a

28 A disabled individual is considered qualitatively in a different category than his/her able-bodied peers (including
his/her former spouse). T his is based on the assumption that such an individual does not have the same opportunities to
reenter the work force. Disability pay may be his/her only source of income. It was reasoned that if this pay were
divided, and the retiree had no other source of income, the retiree could be forced onto public assistance.
29 10 U.S.C. §1413a (g) states that “[p]ayments under this section are not retired pay.”
30 For more information on concurrent receipt, see CRS Report R40589, Concurrent Receipt of Military Retired Pay
and Veteran Disability: Background and Issues for Congress, by Kristy N. Kamarck and Mainon A. Schwartz.
31 Howell v. Howell, (2017), “ Held: A state court may not order a veteran to indemnify a divorced spouse for the loss in
the divorced spouse's portion of the veteran's retirement pay caused by the veteran's waiver of retirement pay to receive
service-related disability benefits.”
32 Bushatz, Amy, "Supreme Court Ruling May Cut Spouses' Divorce Pension Payments," Military.com, May 18, 2017.
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portion of the retired pay prior to determination of CRSC eligibility, DOD may recoup those
payments from the former spouse. Perceptions of unfair treatment resulting from the CRDP and
CRSC changes may possibly encourage further legal consideration of already settled divorces and
have led to cal s for remedial legislative action. For example, in Section 642 of the Senate
committee version of the FY2014 NDAA (S. 1197) there was a provision that would have
protected payments made to former spouses prior to a servicemember’s election of Combat
Related Special Compensation (CRSC). The final version of the FY2014 National Defense
Authorization Act (P.L. 113-66) did not include this provision.
Dual Compensation: Retired Pay and Civil Service Pay
At one time, the amount of military retired pay available for division could be reduced by statutes
concerning “dual compensation” of retired military members employed by the federal
government as civilians.33 Dual compensation statutes provided that the retired pay of certain
retirees, depending on their status as regular or reserve officers, or when they entered federal
civilian service, was to be reduced or capped at certain limits. There were two categories of dual
compensation. The first applied only to retired regular officers (i.e., reserve officers and enlisted
personnel were not affected). Under this restriction, as of December 1, 1993, for example, retired
regular officers employed by the federal civil service were entitled to the first $9,310.17 (or
$8,700.93 for those who entered the service after August 1, 1986) of their annual retired pay, plus
50% of the remainder (the dollar figure is adjusted each year by the same formula used to
calculate cost-of-living adjustments—COLAs—for military retired pay).
A second dual compensation restriction applied to all retired military members who were first
employed by the federal civil service after January 11, 1979. Such retirees who were employed by
the federal civil service had their combined civil service pay and military retired pay “capped” so
that it was not equal to or greater than level V of the Executive Schedule. If the combined pay
exceeded this level V, military retired pay was reduced.
A former spouse who was awarded a percentage share of a retiree’s military retired pay would
necessarily receive a reduced amount when total retired pay was reduced because of dual
compensation restrictions. Such a reduction may have thwarted a court’s intentions and,
therefore, required the former spouse to seek a court-ordered adjustment of the property
settlement.
In 1999, Congress repealed the above “dual compensation” restrictions al owing affected retirees
to receive their full military retired pay.34 The situation is noteworthy in that in some cases repeal
had an effect on benefits available to certain former spouses. Hypothetical y, a divorce property
settlement that provided a fixed amount of retired pay to the former spouse would not be affected
by this repeal. Nevertheless, had the spouse been awarded a portion of retired pay (stated as a
percentage), the amount available would have increased following the repeal. Therefore, in this
latter scenario, both the retiree and former spouse would have experienced an increase in their
benefits.

33 P.L. 88-448; 78 Stat. 484, August 19, 1964, Dual Compensation Act only applies to warrant officers and
commissioned officers and is not affected by the receipt of disability retired pay. Other dual compensation laws affect
all retirees in certain situations.
34 P.L. 106-65; 113 Stat. 512 at 664, October 5, 1999.
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Interactions with Other Federal Retirement Systems
The problems and potential inequities in dividing military retired pay in a divorce-related
property settlement are particularly complicated when the servicemember is, or becomes, entitled
to a pension under the Federal Civil Service Retirement (CSRS), Federal Employees’ Retirement
System (FERS), or Social Security.35 Since 1957, military service has been subject to Social
Security payroll taxes and has been counted as covered employment for al Social Security
benefits. Thus, military retirees draw benefits from two systems completely independent of each
other: military retired pay and Social Security. Most federal civilian employees hired before
January 1, 1984, by contrast, are not covered by Social Security and do not receive Social
Security based on their period of civil service employment.36 This does not preclude these federal
civilian employees from receiving Social Security benefits earned during other periods of
employment covered by Social Security.
Various provisions of law (1) permit the crediting of active duty military service under civilian
retirement systems for the purpose of computing civil service retirement benefits, (2) require the
reduction of civil service retirement benefits when the retiree first becomes eligible for Social
Security retirement payments (general y at age 62) if no corresponding deposit to the Civil
Service Retirement and Disability Fund (CSRDF) is made for post-1956 military service, and/or
(3) permit retroactive deposit into the (CSRDF) for post-1956 military service in order to
eliminate a recomputation that can take place at age 62 for those with military service credited to
civilian retirement systems.37
A military member who, after retirement, becomes entitled to a civil service annuity can elect one
of three options pertaining to military retired pay, Social Security, and a civil service annuity.38 In
each situation, the total income received both by the military retiree and by his/her divorced
spouse from al federal retirement systems, civilian and military, could be affected by decisions
made by the retiree.
a. Receipt of both military and civil service retirement benefit, as well as Social Security
benefits based on the years of military service. This wil provide the retiree with three
separate retirement benefits—military retired pay, a civil service annuity, and Social Security
retirement benefit. Coverage of military service under Social Security entitles spouse and
former spouse (if the marriage lasted at least 10 years) of deceased military retirees to receive
Social Security spouse survivor benefits based on the deceased retiree’s military service.
b. Waiver of military retired pay and crediting of all military service to civil service
retirement, with the amount of civil service pension to be based on total federal service
(including military service), as well as receipt of Social Security benefits based on his/her
military service. Under this option, the military retiree would receive two separate benefits—
civil service retirement and Social Security. However, when the retiree reaches age 62, the
years of military service can no longer be counted toward the civil service annuity (unless a

35 For an overview of the Civil Service Retirement System (CSRS) and the Federal Employees’ Retirement System
(FERS), see CRS Report 98-810, Federal Em ployees’ Retirem ent System : Benefits and Financing . For an overview of
Social Security retirement benefits, see CRS Report R42035, Social Security Prim er.
36 Instead, most civilian federal employees hired before 1984 are covered by CSRS. Most civil servants first hired on or
after January 1, 1984, however, are covered by the Federal Employees’ Retirement System (FERS). FERS is integrated
with Social Security; that is, FERS employees pay Social Security taxes and are fully covered by Social Security.
37 For more information on these issues from the civilian federal retirement perspective, see CRS Report R40428,
Credit for Military Service Under Civilian Federal Em ployee Retirem ent System s.
38 Years of active duty military service may not be double-counted under the military and civilian retirement systems.
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deposit to the CSRDF is made) because they are counted toward Social Security. In this
situation, the civil service pension is reduced at age 62 when Social Security becomes
payable. (This reduction in civil service benefits is known as “Catch 62.”)
c. Selection of the above option (b), and deposit of a lump sum into the CSRDF to avoid a
reduction in civil service annuity which would otherwise occur when the retiree reached age
62. Under this option, the military retiree would also receive two separate annuities—civil
service retirement and Social Security, but the civil service pension would not be reduced at
age 62.39 Section 306 of the Omnibus Budget Reconciliation Act of 1982 (P.L. 97-253,
September 8, 1982) al ows federal civilian employees who, because of their prior military
service, would face “Catch 62,” to avoid the reduction in their civil service annuity at age 62
by al owing them to deposit into the retirement fund an amount equal to what the retiree
would have been required to pay into the civil service pension plan had he or she been a
civilian federal employee during the time he or she actual y performed military service. The
deposit must be made before the civilian employee actually retires from federal civil service.40
“Catch 62” affects military retirees only if they elect to waive receipt of military retired pay in
order to credit their military service toward federal civil service retirement. Military retirees who
continue receiving separate military and civil service retirement annuities are not affected by
“Catch 62” because none of their military service is credited toward civil service retirement.
Federal Civil Service Retirement and Waiver of Military Retired Pay
If a military retiree is divorced, later retires from the federal civil service, and elects to waive his
or her military retired pay and credit his or her military service toward a single civil service
pension, problems arise in the implementing a court-ordered division of military retired pay under
the USFSPA.
Prior to 1996, the waiver of military retired pay reduced the amount of such pay to zero;
therefore, no direct payments under the USFSPA could be made to the divorced spouse. Whether
or not it was the intent of the retiree to do so, he or she thereby deprived the former spouse of
retired pay awarded by a court. The federal civil service pension could then be divided,41 but
neither the retiree nor the ex-spouse would receive any military retired pay after the retiree began
to collect his or her civil service benefits. It is possible for the former spouse to ask the court to
reconsider the property settlement in order to provide for the division of the civil service pension
given the new circumstances. Nevertheless, that is an uncertain process.
In 1996, Congress approved language that would al ow a former spouse to continue to receive
payments based o n a division on military retired pay in instances wherein the retiree waived

39 “Catch 62” does not affect only retired military personnel. When a retiree from the federal civil service with any
previous military service which is credited toward a civil service retirement annuity—regardless of whether or not he or
she has also retired from a military career—reaches age 62 and becomes eligible for Social Security, the civil service
pension is recalculated to exclude the years of military service. In some cases, this means a substantial reduction in
civil service retirement benefits, and also in total retirement income received from federal sources (i.e., civil service
retirement plus Social Security), even with Social Security added.
40 T his section merely alludes to some of the complicated situations that arise due to the interaction of military service,
civil service retirement, and Social Security. For more information, see CRS Report R40428, Credit for Military
Service Under Civilian Federal Em ployee Retirem ent System s.
41 For more information on civilian retirement benefits for former spouses, see CRS Report RS22856, Retirement and
Survivor Annuities for Form er Spouses of Federal Em ployees.
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military retired pay in order to credit military service toward a single civil service pension. This
change was prospective beginning January 1, 1997.42
Persons Affected by “Catch 62”
The impact of the USFSPA on military retirees in the “Catch 62” situation and on their former
spouses is complex. The decision to make a lump-sum payment into the CSRDF so as to avoid a
reduction in civil service retirement benefits at age 62, and the liability for making the payment,
belong to the federal civilian employee alone, regardless of his or her marital status. Retirees
receive a larger annuity by making this deposit. Thus, the retiree and possibly the former spouse
can benefit when the deposit is made. If such a military retiree’s ex-spouse’s property settlement
entitles him/her to a share of the retiree’s civil service pension, the ex-spouse can receive this
share without incurring part of the cost of making the deposit required to avoid the “Catch 62”
reduction in civil service retirement at age 62.
As noted above, prior to 1997, the former spouse whose property settlement entitles him/her only
to a share of military retirement would be deprived of al such retirement benefits. The relevance
and weight given these liabilities and benefits need to be evaluated on a case-by-case basis. Thus,
the divorced military retiree employed by the federal government as a civilian employee, and
potential y subject to the provisions of the USFSPA, faces numerous retirement-related decisions
that include the complex interactions of the different retirement systems.
Early Separations
With the end of the Cold War in 1991, the United States began to reduce the size of the Armed
Forces. In order to meet congressional y mandated manpower end-strength (i.e., the number of
personnel in uniform at the end of the fiscal year), DOD had been provided with a number of
options for downsizing the force, including involuntary separation pay, incentives for early
voluntary separation, and early (pre-20-year) retirement.43
These options may have affected former spouses and military members, since (1) a court may
consider or may have considered future retired pay as divisible property, although the member
may not have actual y retired to receive those benefits because of the drawdown, (2) the potential
amount available under these programs may be substantial y less than would have been available
under longevity retirement (retirement after a military career of 20 years or more), (3) Congress
has neither authorized nor prohibited the courts from considering these separation benefits as
divisible property, and (4) national interests (i.e., the size and composition of the military)
removed from the domain of domestic relations concerns of state courts, are at issue.
Other Issues for Congress
Since USFSPA’s inception, chal enges to its implementation have been dealt with by the courts
and through amendments to the law. The effects of USFSPA are borne by a large number of
military retirees and their spouses across al congressional districts; some continue to feel that
inequities in the law remain and advocate for further review, revision, or repeal of USFSPA
provisions.

42 P.L. 104-201; 110 Stat. 2580; September 23, 1996.
43 T he authorities for some of these separation incentive programs were subsequently amended to extend the programs
through 2001.
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Military Retired Pay and Civilian Pensions
Military retired and retainer pay is often compared to, and contrasted with, public or private
civilian pension programs. Those aspects of military retired pay that are comparable to civilian
pensions lead advocates of dividing retired pay in divorce cases to reason that military retired pay
should be treated similarly, that is, as divisible property. On the other hand, certain unique aspects
of military retired pay, and of military service in general, have led opponents to argue that
military retired pay is qualitatively different from pensions. They maintain that to treat military
retired pay as a pension would thwart much of the program’s justification.
According to DOD, the purpose of providing military nondisability retired and retainer pay is as
follows:
To establish a nondisability retirement system and authorize the payment of retired pay for
service in the armed forces of the United States in order to ensure that (1) the choice of
career service in the armed forces is competitive with reasonably available alternatives, (2)
promotion opportunities are kept open for young and able members, (3) some measure of
economic security is made available to members after retirement from career military
service, and (4) a pool of experienced personnel subject to recall to active duty during time
of war or national emergency exists.44
The first and third purposes are directly comparable to reasons given for providing civilian
pensions. The second purpose is different, in terms of the age at which military members retire.
Most active component military members become eligible to retire between the ages of 39 and
45, while civilian pensions usual y require that the beneficiary be much older before benefits
become available. Al of these provisions are designed to al ow the military to keep the force
“young and vigorous,” by permitting the involuntarily retirement of its members at a relatively
young age.
The fourth purpose provides the principal argument for differentiating military retirement benefits
from civilian pensions. In retirement, military retirees continue to be members of the uniformed
services and, to an extent, their retired pay serves as compensation for reduced service. Military
retirees are general y subject to involuntary recal to active duty as wel as to certain employment
restrictions.45 They also remain subject to prosecution in military courts under provisions the
Uniform Code of Military Justice.46
Under most civilian pension plans, retirement benefits are viewed as deferred compensation. In
other words, pension annuities are based on benefits earned during the period of employment,
rather than during retirement. Since these pensions may also be earned during the period of
marriage, pensions are viewed as property that is subject to division in divorce settlements.
Recent Changes to the Military Retirement System
Qualified military members receive a defined pension from the time of retirement or retirement
eligibility (in the case of the reserve component) until death. Servicemembers may also make
contributions to individual retirement accounts through the Thrift Savings Plan (TSP) or through

44 Department of Defense, Office of the Secretary of Defense. Military Compensation Background Papers, 7th Edition,
September 1996, p. 577.
45 10 U.S.C. §688 provides the authority to recall retired members to active duty.
46 Chapter 47, T itle 10 United States Code.
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other private retirement accounts.47 In the FY2016 NDAA Congress adopted a Blended
Retirement System (BRS) that applies to servicemembers entering the service on or after January
1, 2018 and authorized government matching contributions to the TSP up to a certain percentage
of basic pay.48 In addition, for those entering the service on or after January 1, 2018, their defined
retirement annuity is calculated using a reduced multiplier.49 The reduction in the multiplier for
the defined annuity does not change the USFSPA provision al owing the court to award up to
50% of retired pay to a former spouse. Servicemembers retiring under the BRS stil receive a
defined benefit once eligible for retired pay and are vested in government contributions to their
TSP accounts after two complete years of service. Vesting for the defined benefit remains 20
years of creditable service for a regular retirement.
Funds in a TSP retirement account may be divided in a divorce settlement, and federal statute
does not limit the percentage that can be awarded to a former spouse in the division of these
assets. TSP funds are typical y divided based on the amount in the account at the time of
separation or divorce. The TSP wil honor a court order that requires payment in the future only if
the present value of the payee’s entitlement can be calculated to be paid currently.50 When the
BRS went into effect on January 1, 2018, active duty servicemembers with less than 12 years of
service and National Guard members and reservists with less than 4,320 points had an
opportunity to opt into the new system. This could affect servicemembers and spouses who have
finalized divorce settlements prior to January 1, 2018. For example, a servicemember who has 11
years of service and whose former spouse was awarded 50% of his retired pay could have opted
into the new system. This would reduce the potential monetary value of his/her defined annuity
and potential y reduce the amount received by a former spouse.
Those servicemembers who opted into the new blended retirement system or enter service on or
after January 1, 2018, wil also be eligible to receive a minimum amount of continuation pay
between 8 to 12 years of service. This could be paid to the member in a lump sum or in four
instal ments. This payment could be considered to be divisible upon the dissolution of a
marriage.51
Another consideration is the BRS provision that al ows servicemembers to opt for a discounted
lump sum payment of a portion of retired pay at the time of retirement. It is yet unclear whether a
court order in a divorce settlement could require the servicemember to select either the lump sum
payment or the monthly annuity for the purposes of division with a former spouse. As eligible
members begin to retire under the BRS, Congress might consider whether the contributory
portion of military retirement (TSP individual and matching contributions) should be treated
differently under USFSPA than the noncontributory, defined annuity.

47 T he T SP is a defined contribution retirement plan similar to the 401(k) plans provided by many employers in the
private sector. T he income that a retired worker receives f rom the T SP will depend on the balance in his or her account.
For more information see CRS Report RL30387, Federal Em ployees’ Retirem ent System : The Role of the Thrift
Savings Plan, by Katelin P. Isaacs.
48 Servicemembers with less than 12 years of service on January 1, 2018 were also allowed to opt into the BRS. For
more information see CRS Report RL34751, Military Retirem ent: Background and Recent Develo pm ents, by Kristy N.
Kamarck.
49 T he multiplier for those who entered service before January 1, 2018 is 2.5% for each year of service; the reduced
multiplier is 2.0%. T he formula for calculating military retired pay is the number of years of service times the
multiplier times the average of the highest three years of salary.
50 See T hrift Savings Plan, Court Orders and Powers of Attorney, September 2014, p. 4,
https://www.tsp.gov/publications/tspbk11.pdf.
51 Sullivan, Col. (Ret.) Mark E., SILENT PARTNER: The Blended Retirement System and Divorce, American Bar
Association, Family Law Section, Raleigh, NC, 2016, http://www.americanbar.org/content/dam/aba/administrative/
family_law/committees/blendretsystem.authcheckdam.pdf.
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Pay Grade at Retirement v. Pay Grade at Divorce
Military retired pay is calculated based on an individual’s pay grade and years of service at the
time of retirement (typical y 20 or more years). In some divorce cases prior to 2017, divisible
retired pay was calculated based on years of service at the servicemember’s retirement, even if
the divorce occurred many years prior to the retirement. Some were concerned that the division of
the retired pay at the time of retirement and not at the time of divorce created an inequity for the
servicemember and subsequent spouses. This issue was raised by DOD and others in the initial
consideration of the USFSPA. As stated by Dr. Lawrence J. Korb, then-Assistant Secretary of
Defense for Manpower, Reserve Affairs, and Logistics with regard to the proposed bil ,
I believe the provisions in the first section in this bill to divert up to 50 percent of a
servicemember’s disposable retired pay would be inequitable unless the 50 percent limit is
computed as if the member could retire at the time of the final court order. Pay increases
for promotions and longevity from the data of divorce to the date of retirement would
substantially increase a serviceman’s retired pay. If subsequent raises could be included,
they would constitute windfall benefit for the former spouse to which he or she had made
no contribution.52
The National Defense Authorization Act for FY2017, enacted on December 23, 2016, included a
provision (Section 641) that requires divisible retired pay to be calculated based on “the amount
of basic pay payable to the member for the member’s pay grade and years of service at the time
of the court order” instead of at the time of retirement.
Some have argued that this revision to USFSPA wil add unnecessary complexity to legal
processes in many states that already have a rule or rules in place to al ow for equitable
discounting of a former spouse’s military pension benefit.53 Others argue that the frozen accrued
benefit method is the most equitable approach and should continue to be a federal statutory
requirement.
Remarriage of a Former Spouse
Some benefits to former spouses, such as commissary privileges and medical care, terminate after
the remarriage of a former spouse. However, pension payments to the former spouse continue
after remarriage until the retired servicemember’s death. Some military retiree advocacy groups
argue that the absence of a remarriage clause is inconsistent with the treatment of other federal
retiree and benefit programs.54 In addition, there is the possibility for multiple payments to a
single individual. For example, a former spouse could be awarded 50% of a servicemember’s

52 S.Rept. 97-502.
53 At least six states had already been using the “frozen accrued benefit” or “date of divorce” method for pension
valuation which fixes the retirement benefit at the time of separation or divorce. In addition, a majority of states used
the “time rule” or “date of retirement” method for valuing and dividing a defined benefit plan in divorce cases which
took into account the longevity of the marriage during the member’s service and gives the servicemember credit for
subsequent service time and promotions. For more information on methods for calculating the marital share of a
military pension, see Sullivan, Mark, E., Military Divorce Handbook: A Practical Guide to Representing Military
Personnel and T heir Families, 2nd ed. (American Bar Association, 2011) , p. 536. For more information on how the
“time rule” is applied, see Moss, Anne E., Your Pension Rights at Divorce: What Women Need to Know, 3rd ed.
(Pension Rights Center, 2006), pp. 20-25. http://www.pensionrights.org/pubs/books/divorcebook/
YourPensionRightsAtDivorce%20Part%202 -
%20State%20Divorce%20Law%20and%20Your%20Pension%20Rights.pdf.
54 For example under the Social Security system, benefits of a former spouse terminate after remarriage of the former
spouse.
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retired pay and then remarry and subsequently divorce a second military spouse with an
additional award of 50% of the second servicemember’s retired pay. Previous Congresses have
proposed changes to USFSPA that would terminate payments upon remarriage of a former
spouse. These amendments have not been enacted.
Working Spouses and Dual-Service Couples
In deliberations leading up to the enactment of the USFSPA, the Senate Armed Services
Committee stated the following:
Military spouses are still expected to fulfill an important role in the social life and welfare
of the military community. Child care and management of the family household are many
times solely the spouse’s responsibility.55
Nevertheless, since 1982 the nature of military families and family life has changed. Female
representation in the Armed Forces has increased from 11% to 16%,56 same-sex spouses are
al owed to receive benefits,57 and the number of dual-service married couples has more than
doubled. In 2019, dual-service marriages accounted for 6.8% of al active duty marriages.58 Over
half of married females in the Marine Corps (59.3%) and Air Force (53.6%) are married to other
servicemembers.59
Frequent moves, deployments, and other hardships continue to create chal enges for civilian
spouses of military members. In general, female military spouses are employed at lower rates and
earn less than their female counterparts married to civilians.60 However, some civilian spouses of
military members may have equivalent or greater earning potential in their careers. These civilian
and dual military spouses may not be contributing to management of the family household in the
same way as perceived in 1982 when the USFSPA was first enacted.
The intent of the USFSPA remains equitable treatment by the courts of benefits earned through
military service or affiliation. In the past, fundamental definitions and inconsistent application or
interpretation of the law have mitigated against this intent. In addition, new laws that affect
military benefits but are not directly related to the USFSPA may have unintended effects on
equitable division of already settled or future divorce cases.

55 S.Rept. 97-502.
56 Defense Manpower Data Center, Active Duty Master Personnel File, T able of Active Duty Females by Rank/Grade
and Service, January 2018, available at https://www.dmdc.osd.mil/appj/dwp/dwp_reports.jsp.
57 On December 22, 2010, gay servicemembers were authorized to serve openly; however same-sex partners were
ineligible for certain federal benefits under the Defense of Marriage Act (DOMA). Following the June 26, 2013,
Supreme Court decision on United States v. Windsor holding sections of DOMA unconstitutional, DOD issued a new
policy extending all military benefits for married couples to same-sex couples. For more information see CRS Report
R44321, Diversity, Inclusion, and Equal Opportunity in the Arm ed Services: Background and Issues for Congress , by
Kristy N. Kamarck.
58 Department of Defense, 2019 Demographics: Profile of the Military Community, 2014, p. iv.
59 Ibid., p. 50.
60 For more information, see CRS Report R46498, Military Spouse Employment, by Kristy N. Kamarck, Barbara L.
Schwemle, and Sofia Plagakis.
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Author Information

Kristy N. Kamarck

Specialist in Military Manpower

Acknowledgments
This report updates previous CRS research and reports authored by David F. Burrelli.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
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