What is the USFSPA?
USFSPA is the abbreviated name for the Uniformed Services Former Spouses Protection Act 10 U.S.C. sect 1408. The Act was included as a 'rider' to the 1983 Defense Appropriations Bill and was passed to overrule and effectively invalidate the United States Supreme Court's ruling in McCARTY v. McCARTY, 453 U.S. 210 (1981) that held that military retainer pay was the sole property of the retiree, and was not community property nor subject to division in divorce proceedings.
The USFSPA creates a legal fiction in calling the retainer pay “property” when in fact it is not! In fact, all Military Retainer Pay, including amounts awarded to a former spouse, are taxed by the IRS as income. Additionally, retirees are required to meet a number of conditions to continue to receive the pay; they are subject to recall to active duty and subject to court-martial. Spouses have no such conditions!
Although constitutional challenges to the USFSPA have not been successful, the Supreme Court has upheld the language of the statute on two occasions when state courts have tried to work around the statutory protections.
Most states have or are modifying their divorce protocols, specifically to no longer require lifetime payments to a former spouse. There are only seven states currently that have permanent alimony; most divorce settlement agreements include terms for review and modification as circumstances change or with some other significant event. USFSPA determinations do not!