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Military Divorce and Separation

Jurisdiction and Division of Military Retired Pay

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Jurisdiction

In a military divorce, there may be up to three separate jurisdictions where one can file for divorce: the legal residence of the military member; the legal residence of the spouse; and the state that the servicemember is stationed in.

Servicemembers do not change their legal residence merely because they move to another state. The Servicemembers Civil Relief Act, (SCRA) allows servicemembers to live in one state, yet claim another state as their legal residence.

The same is not true for the spouse. The spouse's legal residence is usually the state he/she is currently residing in. In order to file for divorce, however, in most cases, the person would have to establish "minimum residency requirements," ranging from three months to six years.

Additionally, most states have laws which allow a member or spouse to file for divorce in the state the member is stationed in, even if the member or spouse are not residents of that state. Many states even exempt a "minimum residency" for military divorce actions.

For example, Airman Joseph Tribett is stationed at Travis Air Force Base, in California. Joe's "legal residence" is in Nebraska. He has been separated from his wife for a year. Jill has been living with her parents in Denver, Colorado.

Either party can file for divorce in California, Nebraska, or Colorado. Sometimes it is advantageous to review divorce laws of the different states which may have jurisdiction before deciding exactly where one should file for divorce (However, keep in mind that if you file in a state other than where you are actually residing, this will require travel for court appearances, ect.)

Division of Retired Pay

In the late 1970s and early 1980s, various state courts began to treat military retired pay as "community property," often awarding a portion of the pay to the former spouse. One such case from California finally wound its way through the federal courts to the Supreme Court, who ruled in McCARTY v. McCARTY, 453 U.S. 210 (1981), that federal law did not allow retired pay to be treated as joint property.

In its decision, the court was very clear that division of military retired pay was not necessarily unconstitutional, but that current federal laws (at the time) prohibited treating military retired pay as joint property.

In response, Congress passed the Uniformed Services Former Spouse Protection Act (USFSPA), in 1982. This act allows state courts to treat disposable retired pay either as property solely of the member, or as property of the member and his spouse in accordance with the laws of the state court.

Contrary to popular belief, there is no "magic formula" contained in the act to determine the appropriate division of retired pay. A state court can divide retired pay in any way it chooses (subject to the laws of that state). For example, it would be perfectly legal for a court to divide military retired pay 50/50 for a marriage that only lasted two months (again, subject to the laws of that state). A state could also decide to award a majority of the retired pay to the former spouse, if the state laws allowed such a division. Conversely, a court may also choose to treat retired pay as the exclusive property of the military member.

However, in order for the Department of Defense (DOD) to make direct payments of a military member's retired pay to the former spouse, the following guidelines must be met:

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