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The Divorce Encyclopedia
Military Divorce

Term Definition Military Divorce - a divorce involving an member of the uniformed services and his or her spouse, who may or may not be in the military.
Application in Divorce A military divorce differs from a civilian divorce in one salient feature. A military divorce permits state courts to divide retirement benefits ("retired pay") according to the Uniformed Services Former Spouses’ Protection Act (USFSPA). This means the state courts, which grant the divorce, may treat retirement pay as property and award up to 50 percent of it to the former spouse.

USFSPA applies to both male and female members of the uniform services, regular and reserve components on active duty, or already retired in the army, navy, air force, marine corps, coast guard, national guard and reserve, public health service and National Oceanographic and Atmospheric Administration in any court of competent administration in the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the Virgin Islands, the Northern Marina Islands, the Trust Territory of the Pacific.

The salient feature of USFSPA is that it permits a former spouse to receive up to 50 percent of the military members retired pay directly from the finance center, based on the number of years married concurrent with military service. Moreover, the computation of the retired pay is made based on the rank at the time of retirement, not at the time of divorce.

For purposes of a divorce settlement, retired pay is classified as property, not income. USFSPA applies to all military divorces subsequent to June 25, 1981.

USFSPA does not preclude the award of other support from retired pay. The division of retired pay may be made apart from any alimony or child support. Furthermore -- an this feature most troubles some military members -- since it is property, the pay continues even after the remarriage of the former nonmilitary spouse. For a military spouse to receive retired pay he or she must serve no less than 20 years of creditable service, yet the marriage need "only to have lasted at least 10 years during which the member performed at least 10 years of creditable service."

Significantly, there is no need for the nonmilitary spouse to prove need or a "contribution to the military member’s career." Mo reover, there is no time limit for a former spouse to make a claim against the retired pay of a former military spouse.

Military divorces sometimes include elements that make them more complicated than civilian divorces, including but not limited to, the length of marriage during the military career as a determinant for benefits (including medical care, commissary and exchange privileges) and pre- and post-service employment (with a provision against dual compensation).

In most civilian divorces, property is divided. In a military marriage, this often does not include a house or other substantial assets. The military members retirement benefits are sometimes the only financial asset worth dividing.

In a military marriage, the question is jurisdiction is complicated by frequent moves that make meeting residency requirements and service difficult. Some states have special provisions for service members to divorce even though they are not residents in the usual sense of the word.

The Soldiers and Sailors Civil Relief Act (SSCRA) of 1940 offers certain protections to military personnel whose duties prohibit them from appearing in court.

Resources: The American Retirees Association (ARA) of Redlands, California, deals the problems of USFSPA, Public Law 97-252, 10 U.S.C. 1408 et seq.

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