What Gives A State Court The Power To Treat Military Retired Pay As Marital Property To Be Divided In A Divorce?

Tue, 29 May 2007 21:19:00 GMT

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 97252, and the portion dealing with the division is codified at: Title 10 United States Code, Section 1408.

Are There Limits On Forum Shopping By The Spouse?

Tue, 29 May 2007 21:19:00 GMT

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.

Did The Law Require State Courts To Divide Military Retired Pay?

Tue, 29 May 2007 21:19:00 GMT

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.

Does The Fspa State Who Is Responsible For The Payment Of Income Tax On The Share The Former Spouse Receives?

Tue, 29 May 2007 21:19:00 GMT

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.

Does The Usfspa Dictate How The Division Of Retired Pay Will Be Computed?

Tue, 29 May 2007 21:19:00 GMT

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

Does The Usfspa State When A Child Support Obligation Terminates?

Tue, 29 May 2007 21:19:00 GMT

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.

How Do State Courts Determine How To Divide The Retirement?

Tue, 29 May 2007 21:19:00 GMT

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!

Then What Does The Act Cover?

Tue, 29 May 2007 21:19:00 GMT

In overly simplistic terms, the Act specifies the limits placed on state courts and outlines how an application for direct payments will be processed.

What Is The Definition Of Disposable Retired Pay?

Mon, 04 Jun 2007 21:51:22 GMT

It varies depending on when the marriage was dissolved. The current definition is found in the Act at (a)(4).

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