Military Divorce issues

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Military Divorce Issues

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FEDERAL LAW: 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. At this time, all states, including Colorado in one way or another, treat military retired pay as property in certain circumstances.

DIVISION OF RETIRED PAY: S tate courts determine the percentage awarded to the spouse.

JURISDICTION: 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."

DISPOSABLE RETIRED PAY: 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.