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Military Divorce No one wants to think about divorce, but if you are military and considering divorce, think that you will be sued for divorce, or are just plain interested in how military divorce differs from others, the following FAQs will answer a number of your questions. MILITARY DIVORCE FAQs ________________________________________ 1. What gives a state court the power to treat military retired pay as marital property to be divided in a divorce? 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. 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, this 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 Act specifies the limits placed on state courts and outlines 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! 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. 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: 1. Even though the order awards a portion of gross retired pay, the Center will pay only a percentage of disposable pay. 2. 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. 3. 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. 4. 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). 9. Does the USFSPA state when a child support obligation terminates? 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 FSPA state who is responsible for the payment of income tax on the share the former spouse receives? Indirectly, under certain circumstances it does. 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. -- This page was provided by Family Law Advisor LAWTEK MEDIA GROUP, LLC, which owns DivorceNet.com
Legal Disclaimer: This information was provided for the convenience of our visitors and is not intended to be taken as legal advice from this site, in any form. For the latest law on military divorce, you should consult your lawyer. For more general information in this area, try DivorceNet.com, a website that has been around for at least 10 years and has gained a good reputation in the internet and legal communities.
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