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Military Divorce and Separation

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    (1) The ex-spouse must have been married to the military member for a period of at least 10 years, with at least 10 years of the marriage overlapping a period of military service creditable to retired pay.

    (2) Direct payments will not be made for division of retired pay in excess of 50 percent (If there is more than one divorce, it's first come, first serve -- no more than 50 percent will be paid as division of retired pay -- For example, if a court awards ex-spouse number one 40 percent of retired pay, and another court awards ex-spouse number two 40 percent of retired pay, DOD Finance will directly pay ex-spouse number one 40 percent and will direct pay ex-spouse number two 10 percent).

    (3) Disability pay is not subject to division as property. It is subject to garnishment for alimony or child support, however.

    (4) Alimony or child support can be paid in addition to division of retired pay. In this event, DOD Finance will not pay over 65 percent of an individual's disposable retired pay for property division and alimony/child support.

In other words, let's say that Joe and Jill were married for 12 years, but only 8 of those years were while Joe was in the military. The state court awards Jill 40 percent of Joe's military retired pay. In this case, Jill cannot apply to have DOD pay her directly because there was not a 10 year overlap of the marriage to Joe's military service. Joe, however, would be responsible for paying Jill once per month, or face possible consequences from the court.

If, on the other hand, Joe and Jill had been married for 12 years with all 12 years overlapping Joe's military service, Jill could request DOD Finance to pay her portion of the retired pay directly to her.

Jurisdiction Over Retired Pay. One very important provision of the USFSPA is often overlooked, even by experienced attornies: In order for a state court to have jurisdiction over a member's retired pay, the court must have jurisdiction over the member by:

    (a) his/her residence, other than because of military assignment, in the territorial jurisdiction of the court,

    (b) his/her domicile in the territorial jurisdiction of the court, or

    (c) his/her consent to the jurisdiction of the court.

Let's bring our distraught Joe and Jill back into the picture. Assume Joe is stationed in California, but claims Nebraska as his legal residence. Jill's legal residence is in Colorado.

If Jill files for divorce in Colorado, the court would not be allowed to divide Joe's military retired pay unless Joe consents to the jurisdiction of the court (assuming the couple had no joint-residential ties in Colorado).

If Jill files for divorce in California (where Joe is stationed), the matter is more complicated. Regardless of "legal residence," if a court determined that California is their home, not just a residence of convenience (i.e. due to military stationing), the court could assume jurisdiction over the member's retirement pay, regardless of consent.

A servicemember whose family has bought and lived in a home, established church and community affiliations, educated and raised children in the state, might well be considered domiciled there even though they have maintained a "legal residence" elsewhere.

Whether the duty station state courts have jurisidiction, absent consent, is a question that must be resolved on a case to case basis.

Important Note : Jurisdiction is a very tricky issue. In some states one can "consent" merely by contacting the court, or responding to a summons. Before replying to any correspondence from a court which may not have jurisdiction over your retired pay, it is very important that you consult with an attorney who is knowledgeable of jurisdictional issues as they apply to the Uniformed Services Former Spouse Protection Act, and the laws of the state in which the court action was filed. I can't emphasize this enough!

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