12 Sep Divorce and Military Retirement Pay
In most cases military divorce rate equate to U.S. civilian divorce rate of approximately 50 percent.
The U.S. Supreme Court deemed military retirement pay couldn’t be divided as community property by state divorce courts in 1981 because current federal laws at that time constrained the handling of military retired pay as joint property. In 1982 Congress passed the Uniformed Services Former Spouse Protection Act (USFSPA) that entitled state courts to value disposable retired pay either as property only of the member or as property of the member and their spouse in congruity with the laws of the state court.
Depending on the reservations of the state law, the state could effectively divide military retired pay 50-50, decide to award a majority of the retired pay to a former spouse, or treat the retired pay as the exclusive property of the military member.
The DOD, however, is capable of paying an ex-spouse directly if:
- The ex-spouse has been married to the service member for at least 10 years, with at least 10 of the marriage years taking place during a period of military service applicable to retired pay.
- Direct payments won’t be made for the division of retired pay for more than 50 percent. (If the service member has more than one divorce, no more than 50 percent is paid as a division of retired pay. The division of retired pay of a service member with two ex-spouses, then, could result in the court awarding the first ex-spouse 40 percent and the second ex-spouse 40 percent. The DOD directly pays the first ex-spouse 40 percent and the second ex-spouse 10 percent.)
These provisions constrain only when the DOD can pay the ex-spouse directly, whereas, in alternative circumstances, the service member obtains the retirement pay and must subsequently pay the ex-spouse their share or be subject to contempt of court.