The Federal Law that Awards Military Pay
If you are a typical civilian couple who is divorcing, you must primarily be concerned with the laws of the state in which you are divorcing. If you are a military couple, though, you will not only have to contend with your state laws, but you will have to incorporate federal law into your divorce decree. That law, signed on September 8, 1982, is the Uniformed Services Former Spouses’ Protection Act (USFSPA), Public Law 97-252 (10 U.S.C. 1408).
The USFSPA applies to all active duty, reserve/guard, and retired military, the U.S. Coast Guard, and members of the U.S. Public Health Service (USPHS) and the National Oceanographic and Atmospheric Administration (NOAA).
The USFSPA permits states to award up to 50 percent of the military member’s retired pay (or up to 65 percent including court-ordered child support) in a divorce. This does not mean that 50 percent is the maximum award, nor that 50 percent is always awarded. It only means that the finance center will only pay out up to half of the retired pay. The court may award more, which then becomes the responsibility of the service member to pay.
The original intent of the USFSPA was laudatory and remains so: to provide, in a divorce action, for the faithful spouse who had loyally supported the military member’s career. The USFSPA has created mass confusion in the state courts, primarily due to the myriad of interpretations of the USFSPA nationwide. If you are aware of these problems, you can save yourself time and grief and, even more important to your financial future, money, by educating yourself on this law.
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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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