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Military Divorce FAQs

by Edwin Schilling, Esq.
For More Information, See "Military" Area of the Flying Solo Website.

1. What gives a state court the power to treat military retired pay as marital property to be divided in a divorce?

In 1981 the U.S. Supreme Court held that military retired pay could not be treated as marital property subject to division in a divorce. However, the court went on to say that their ruling was based on the current law, and that Congress could allow the retirement to be divided if it passed a new statute.

In response to this, in 1982 Congress passed a law, the Uniformed Services Former Spouses' Protection Act, that permits state courts to treat military retired pay as property. The law was Public Law 97-252, and the portion dealing with the division is codified at Title 10 United States Code, Section 1408. The latest version of the law is found elsewhere on this site.

2. Did the law require state courts to divide military retired pay?

No, it only permitted state courts to treat it as property. At this time, all states, in one way or another, treat military retired pay as property in certain circumstances.

3. Does the USFSPA dictate how the division of retired pay will be computed?

No. With certain broad limitations, it is left to state courts to determine the percentage awarded to the spouse.

4. Then what does the Act cover?

In overly simplistic terms, the major provisions of the Act specify the limits placed on state courts and outline how an application for direct payments will be processed.

5. How do state courts determine how to divide the retirement?

In community property states and many of the other states, a cut and dried formula is used when the member has already retired. But for an active duty member, there may be no state law that specifies how the award is to be calculated.

Depending on who was to receive the larger award, there are at least twelve arguably fair
methods of calculating the former spouse's share. All would be acceptable under the FSPA!

The law of the state in which the divorce is taking place should be carefully researched to reveal the rules in that state.

6. Are there limits on forum shopping by the spouse?

Yes, the FSPA has special jurisdictional requirements that must be met before a court has the power to treat retired pay as property. (This requirement is not present when the application made for an award of child support or spousal maintenance.)

The Act states in section 1408(c)(4):

"A court may not treat the disposable retired or retainer pay of a member in the manner described (above) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court."

This provision is one of the protections for the member in the Act, but few attorneys seem to consider this provision in planning the strategy for the case. It is much more restrictive that the usual state rules as to when a court has jurisdiction over a party to litigation, and it is vital that the attorney representing either party fully consider the implications of this rule.

Furthermore, the 1996 amendment to the act clarifies the jurisdictional rules when a modification is issued. A new provision has been added to 10 U.S.C. 1408(d):

(6)(A) The Secretary concerned may not accept service of a court order that is an out-of State modification, or comply with the provisions of such a court order, unless the court issuing that order has jurisdiction in the manner specified in subsection (c)(4) over both the member and the spouse or former spouse involved. "(B) A court order shall be considered to be an out-of-State modification for purposes of this paragraph if the order-- "(i) modifies a previous court order under this section upon which payments under this subsection are based; and "(ii) is issued by a court of a State other than the State of the court that issued the previous court order.".

7. Does the USFSPA specify how the base amount against which the percentage award is applied will be calculated?

This is a very complex subject, and one of the central issues that should be addressed by the trial attorney. Regardless of the language of the court order, the Act says that all percentage awards will be applied against "disposable retired pay" (section 1408(d)(1)). As a consequence certain language of court orders will be ignored by the Center.

For example:

a) Even though the order awards a portion of gross retired pay, the Center will pay only a percentage of disposable pay.
b) If the order provides that the former spouse will pay the premium for the SBP, the Center will not make the adjustment. There will have to be an exchange of money between the parties, or another method used by experts to shift the cost that gets around the pay center rules.
c) If the order states that the former spouse will receive a credit for a portion of the income tax withheld, the Center will process the credit. Again, the parties will have to exchange the money.
d) If the order specifies that payments for the premiums of life insurance that are currently being paid by allotment by the retiree will be paid out of the former spouse's share, the Center will ignore this provision.

A carefully drafted agreement or order can sometimes be used to get around these limitations.

8. What is the definition of "disposable retired pay"? It varies depending on when the marriage was dissolved. The current definition is found in the Act at (a)(4).

(4) "Disposable retired or retainer pay" means the total monthly retired or retainer pay to which a member is entitled less amounts which-
(A) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay;
(B) are required by law to be and are deducted from the retired or retainer pay of such member, including fines and forfeitures ordered by courts-martial, Federal employment taxes, and amounts waived in order to receive compensation under title 5 or title 38; are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under Title 5 or Title 38;
(C) in the case of a member entitled to retired pay under chapter 61 of this title [10 USC 1201 et seq.], are equal to the amount of retired pay of the member under that chapter 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); or
(D) are deducted because of an election under chapter 73 of this title [10 USC 1431 et seq.] to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired or retainer pay is being made pursuant to a court order under this section.

It is important to understand that there have several definitions of disposable retired pay, and the one that will be applied by the pay center depends on when the divorce took place.

9. Does the USFSPA state when a child support obligation

It is frequently assumed that there is an automatic termination of an obligation to pay child support when the child reaches 18. The Act is silent. Once again, it is the language in the order or state law that controls. Your attorney should tell you when the obligation is to terminate so that you can plan your financial affairs.

10. Does the USFSPA state who is responsible for the payment of income tax on the share the former spouse receives.

Indirectly, under certain circumstances it does. A brief discussion cannot explain these complicated rules. A part of any settlement should be a clear understanding on what rules apply in a particular case, because unintended results can take place without proper planning, and a lack of understanding of the law.

11. How do I find an attorney who will help me in a military divorce?

Very few attorneys have a working knowledge of this area, so it is advisable to bring in an expert such as Edwin Schilling III who is profiled on this site. Mr. Schilling consults with attorneys throughout the United States. The best approach is to find the best divorce lawyer you can, and he or she can use Mr. Schilling to assist in the military issues. Mr. Schilling can assist on the military issues. Mr. Schilling's telephone number is 303-755-5121. Elsewhere on this site is a file discussing the selection of an attorney.

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