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Military Retirement. Divorce Implications

Wednesday, 31 December 2008

Military Retirement. Divorce Implications Overview

Military service members are awarded special treatment by the federal government in civil suits due to their unique circumstances. The issues surrounding military personnel first surfaced during the wars when many members were unable to respond appropriately to suits filed against them due to their being on duty. The federal government enacted legislation allowing service members special treatment and laxity in responding to civil suits under certain conditions like being on duty at the time.

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These regulations have long lasting impacts specifically on military retirement, divorce, and other related issues. Of special interest is the military retired pay that a service personnel is entitled to after retirment. The law over a period of time has laid down guidelines as to how this must be divided amongst former spouses and the restrictions on dividing it.

Impact of divorce on military retirement pay

Until 1981, courts were unable to use the military retirement pay of a military personnel in their calculations when it came to division of property. However, after the federal government passed the Uniformed Services Former Spouse Protection Act (USFSPA), courts were allowed to use retirement pay for calculation of alimony, or child support.

However, the law lays down the rule that no more than 50% of a military personell's retirement pay can be used for this purpose. Even if there are several spouses, this barrier cannot be broken and the amount is divided on a first come first serve basis. For example, if there are two former spouses of a military service member, and the first spouse is awarded 40% of the member's pay, then the second spouse cannot receive more than 10%.

In addition, the amount of retirement pay that can be divided is restricted to disposable military retirement pay only. There are several deductions that can be made from the total pay to arrive at the disposable amount.

Jurisdiction of courts on division of military retirement pay

Since military personnel can be in several places on duty, the question arises as to where the divorce proceedings should be filed. If the spouse is living in a state that is neither the service member's place of duty, nor his or her legal residence, then the divorce proceedings can be filed in any of the three locations. However, remember that you must live there long enough to be a legal resience. In Colorado for example, you must live in the state for a year before you are considered to be a resident. Other states can have stricter requirements.

However, the most important point to remember is that for the court to be able to divide the retirement pay, the proceedings must be filed in either the legal residence of the service member, or the place of duty. However, if the service member consents to the court having this authority, then the court can proceed with the division. This is very important. That is why it is important to consult an attorney who is familiar with military divorce. Sometimes merely answering a summons is enough to show that the authority of the court has been accepted.

Never answer any summons or sign any document unless and until you have consulted with an experienced attorney like those you find in our firm. This is the best way to protect yourself and your rights. Contact us now and get the best legal support you can ever find.

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