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Division of Military Retirement Benefits in Divorce

Tuesday, 17 November 2009

After several divorce cases resulted in military retirement pay being awarded to an ex-spouse as part of a “community property” ruling, a subsequent case reached the U.S. Supreme Court.  The resulting decision was that military retirement benefits were not yet covered by federal laws and could not legally be treated as joint property. 

Since this decision was unacceptable to military spouses, Congress soon passed a law that allows state courts to determine whether military retirement pay is to be considered joint property or sole individual property in a divorce.  This law is called the Uniformed Services Former Spouse Protection Act (USFSPA).

While this law may seem to affect different people in different ways, a lawyer familiar with Colorado divorce laws can help make sense of it for you.  If you are considering a military divorce in Colorado, consulting with an experienced military divorce attorney is an intelligent first step. 

How will military benefits be divided?

There is no “magic formula” in the USFSPA laws that will tell you how the courts will rule in your case. In fact, it is perfectly legal for a court to order a 50/50 split for a brief marriage, or even award the majority of the benefits to the non-military spouse, as long as state laws allow it.  In some cases, however, the state of Colorado may decide to award the entire military retirement pay to the military member. 

Certain federal laws do apply to the division of military retirement pay, in terms of the length of marriage and payable percentage of total benefits, but the courts are given a lot of leeway in determining the rest.  For these reasons, if you want to ensure you get your fair share of a military retirement package, working with a Colorado Springs military divorce lawyer is imperative.

Note:  Jurisdiction must be established in a state before that state can take action on military retirement pay, and establishing jurisdiction can be very tricky in a military divorce.  Be sure your attorney is knowledgeable about military jurisdiction requirements as they pertain to your case. 

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