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. 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 , 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 , because then-current federal law did not authorize the treatment of military retired pay as divisible property in such a settlement. In reaching this ruling, however, the court did not necessarily endorse its social impact. Justice Blackmun (writing for the majority), virtually invited Congress to consider a change in the law to allow 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, 96 th 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 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. Congress responded by enacting the Uniformed Services Former Spouses' Protection Act in September 1982. The USFSPA has five main provisions. 1. It enables state courts to treat disposable military retired pay as divisible property in divorce cases. 2. It allows direct payments by the uniformed services (Army, Navy, Marine Corps, Air 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 allows 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 allows 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 allow state courts, under certain conditions, to order a member or retiree to provide military Survivor Benefit Plan benefits to a former spouse. 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 well as commiss ary and exchange privileges. The USFSPA currently allows 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). There has been some confusion about the distinction between USFSPA provisions that authorize courts to divide retired pay, and provisions that allow for the direct payment of divided retired pay. Under the USFSPA, 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—including the Marine Corps, and 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. These payments are managed by DFAS. 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) whether or not the retired pay is divided. 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 (i.e., retires). 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." 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 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 allocate the retained amount in accordance with the USFSPA. Finally, the USFSPA does not allow 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. In addition to providing for the division and direct payment of military retired pay, the USFSPA allows 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. All personnel of the uniformed services who retire on or after September 21, 1972, are automatically 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. Changes concerning the 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. Under the plan, retired pay is reduced to provide for the cost of a survivor benefit. The USFSPA provides that members or retirees may voluntarily elect to name a former spouse as beneficiary for divorces occurring before November 14, 1986. This election may be part of, or incident to, a divorce-related property settlement. 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)." This language does not require courts to make such an order, but gives them the freedom to do so.