Myths that Have Caused Problems in Military Divorce
Military couples have found themselves in financial trouble and drawn-out negotiations because of their misbeliefs regarding the USFSPA. One misbelief is that the award of retired pay is "it" --meaning, there can’t be any other award for alimony or maintenance. On the contrary, the award of military retired pay may be in addition to child support and alimony or maintenance.

Another very prevalent myth is the 10-year rule. Many think you must be married for at least 10 years for the court to award a share of the military retired pay. The marriage need last only minutes (long enough to say "I do") in order for the spouse to be entitled to a share of the military retired pay. However, the marriage needs to have lasted at least 10 years and overlapped with the service member’s creditable military service for 10 years for the defense finance center to make the payment directly to the former spouse.

Many spouses think that if they were the beneficiary of the Survivor Benefit Plan (SBP) while married, that they will remain so upon divorce. This is not true, and SBP is a mutually exclusive benefit that must be addressed in the divorce (whether it is to continue with the current spouse or not).

Despite the original intent of the law--to reward faithful spouses who loyally supported the service member’s career--the USFSPA as it is applied today ignores fault, merit, need, ability to pay, or respective financial circumstances. In short, if the service member spent seven years as a prisoner of war, and the spouse files for divorce and wants half of the community property "earned" while the service member suffered at the bands of the enemy, then the spouse can so request it and the courts can so award it.

Lastly, many are under the impression that the USFSPA is a fairly recent law that awards a share of military retired pay in divorces. The truth is that the states have always had the authority to treat this marital asset just like any other marital asset. (What the USFSPA did was to permit the states to classify military retired pay as property, as opposed to income. Individuals married to military members have always had (and still do) access to all the remedies and protections available to non-military couples in divorce court.



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Suggested Reading
Divorce & the Military II Divorce & the Military II
DIVORCE AND THE MILITARY II is the newly published comprehensive guide for military members (active duty, reserve/guard, and retired), spouses, and their attorneys, on the Uniformed Services Former SpousesŐ Protection Act (USFSPA). The USFSPA is the federal law that permits the award of military retired pay in a divorce.

Author: Marsha L. Thole and Frank W. Ault


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RESIDENCY AND FILING -- Many states permit a military member or spouse to file for divorce in the state where the military member is stationed even if neither is a legal resident of the state. Military members and spouses have three choices when it comes to which state to file for divorce: 1) the state where the filing spouse resides, 2) the state where the military member is stationed, or 3) the state where the military member claims legal residency.
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