Understanding the Armed Forces Former Spouse Protection Act in North Carolina
The Armed Forces Former Spouse Protection Act (AFFSPA) is a federal law that provides certain benefits to former spouses of military members. In North Carolina, as in other states, the AFFSPA plays a critical role in divorce proceedings involving military personnel. The Act recognizes the unique challenges faced by military families and provides a framework for the treatment of military retirement pay in divorce, as well as access to commissary, exchange, and health care benefits for eligible former spouses.
Enacted in 1982, the AFFSPA came as a response to the Supreme Court's decision in McCarty v. McCarty, which essentially ruled that federal law did not grant state courts the authority to treat retired military pay as marital property. The AFFSPA rectified this by allowing state courts to distribute military retired pay to a spouse or former spouse as part of an approved property settlement.
Division of Military Retirement Pay
Under the AFFSPA, state courts in North Carolina can treat military retirement pay as either sole or community property depending on the state's laws. In North Carolina, this means that the portion of retirement pay accrued during the marriage can be subject to equitable distribution. The state court will consider factors such as the length of the marriage, the duration of military service during the marriage, and other relevant economic factors when determining how to divide this asset.
Eligibility for Benefits
The eligibility for commissary, exchange, and health care benefits depends on what is commonly referred to as the 20/20/20 rule or the 20/20/15 rule:
- 20/20/20 Rule: If the marriage lasted at least 20 years, the service member has at least 20 years of creditable service towards retirement pay, and there was at least a 20-year overlap between the marriage and service, the former spouse may be entitled to full commissary, exchange, and health care benefits.
- 20/20/15 Rule: If there was at least a 15-year overlap between the 20 years of marriage and 20 years of service, a former spouse may be eligible for transitional medical benefits for one year post-divorce. However, they will not have access to commissary or exchange benefits.
The Act also provides protection for child support and alimony payments. State courts can enforce these payments through wage garnishment from the service member's retirement pay if necessary.
Limitations and Considerations
It is important to note that while AFFSPA grants state courts permission to consider military retirement pay as divisible property, it does not automatically entitle a former spouse to a portion of it; that determination is made based on state law and individual circumstances. Furthermore, AFFSPA does not provide guidance on how retirement pay should be divided; rather, it allows each state's legal system to make such decisions.
For divorcing couples where one party is a service member, understanding and navigating AFFSPA regulations requires careful consideration. Legal advice from an attorney experienced in military divorce can be invaluable in these cases.
The Armed Forces Former Spouse Protection Act provides essential protections and benefits for former spouses of military personnel but comes with its own set of complexities. In North Carolina, those facing divorce where military retirement pay is an issue must take into account both federal guidelines under AFFSPA and North Carolina's laws regarding equitable distribution of property. With proper legal guidance, individuals can navigate these challenges and work towards fair settlements that honor their contributions during their spouse's military career.