Controversies that Have Caused Court Appeals and Cost Money During a Military Divorce
There are numerous controversies, as analyzed from divorce court appeals, that have caused problems for military couples. Some of these issues were the result of inadequate legal representation.
While space does not permit an explanation of each controversy we have highlighted those issues that have the potential to cost the most if they are overlooked or not addressed adequately during the divorce process.
Computation of Retired Pay
The first of these is the computation of the retired pay. Determining how much the spouse will get can be complicated, depending on the type of military service, whether it was all active duty, an early retirement, time spent in the reserve/guard, and inactive duty time. As specified in the USFSPA, there is no formula. The amount, unless the couple use a formula, is based on the rank at retirement and not at the time of divorce. States, however, are awarding retired pay as calculated on the date of divorce and the rank at that time. This is perhaps the least understood, yet most confused aspect of this law, as evidenced from case analysis.
Another controversy, and perhaps as equally important as the computation of retired pay, is related to disability pay. The USFSPA does not allow for an award of disability pay--the disability pay portion is deducted first before computing any share to the former spouse. Many courts, however, have circumvented the federal law in this regard. Disability pay is an emotionally charged subject, and many spouses are mistaken in their belief that any service member can get disability pay. Any service member who has gone through the process of applying to the VA for disability will dispute that it is an "easy" process--some cases take several years to adjudicate.
Remarriage of Former Spouse
Another widely debated controversy is that the award of military retired pay does not stop upon remarriage of the former spouse. Spouse groups argue that they "contributed" to all the service member’s promotions, even though they may have divorced long before the member reached the top grade or a senior rank. There have been cases where the second spouse was married (and had children with the service member) for more years to the military member than the first spouse. So, how could one say the first spouse is the one who contributed the most to the member’s career or family?
it is not the purpose here to debate the remarriage clause in the federal law, but to expose you to a controversy that has and will most likely go on for a lot longer. It is debated in concert with the issue of whether retired pay is income or property. The IRS considers retired pay income, and taxes it, The federal law says the state can treat retired pay as property (you will still pay tax on it). (The book, Divorce and the Military II, covers this debate in detail.) Determining each spouse’s contributions to the marital unit is something you need to do in concert with your legal counsel. Sometimes calling in professional actuaries may be necessary to. determine the value of non-monetary contributions.
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PROPERTY DIVISION -- The Uniform Services Former Spouse Protection Act (USFSPA) allows state courts to treat disposable retired pay either as property solely of the military member or as property of the member and his spouse. The USFSPA authorizes direct payment of a portion of a military retirees pay to the former spouse and extends some base privileges to certain former spouses. Although up to 50% of a military member’s retired pay may be awarded, state law determines the exact division of the retired pay.
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