In a military divorce, retired pay is often the major
property division issue. It is a pretty complicated subject. So you need an experienced Phoenix divorce lawyer on your side. Let's take a look at some of the issues.
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, which ruled that federal law at the time did not allow retired pay to be treated as joint property McCarty v. McCarty, 453 U.S. 210 (1981) (an otherwise valid federal law, of course, trumps state law in case of a conflict).
In its decision, the Court was very clear that division of military retired pay was not necessarily un-constitutional. It merely held that federal laws at the time prohibited treating military retired pay as joint property. The Court took the somewhat unusual step of suggesting that Congress change the law.
Congress did just that. Congress passed the Uniformed Services Former Spouses Protection Act (USFSPA) in 1982. This act allows state courts to treat disposable retired pay in accordance with state law. In Arizona, that means the court can treat retired pay either as property solely of the servicemember, or as property of the servicemember and the spouse.
Contrary to popular belief, there is no "magic formula" contained in the USFSPA to determine the appropriate division of retired pay. As far as federal law is concerened, a state court can divide retired pay in any way it chooses. The state court has to follow its own state law, but failure to do so is a matter for the state appellate authorities to correct. For example, it would be perfectly legal (as far as the federal government is concerned) for a court to divide military retired pay 50/50 for a marriage that only lasted two months; if the servicemember believes such a division violates state law, the remedy is an appeal to the state appellate courts. 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, if you are the former spouse and you have been awarded a portion of the servicemember's retired pay, you don't want to have to depend on your military former spouse to send you a check each month. You'd much rather have the Department of Defense (DOD) makes payments directly to you. And in order for DOD to make direct payments of a military member's retired pay to the former spouse, the following guidelines must be met:
(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. NOTE: ex-spouse # 2 still has a right to collect the remaining 30% from the retired servicemember, but will have to use other means.
(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.
To avoid the 10-year rule, some former spouses will accept increased spousal maintenance instead of a share of the military pension. The reason being that spousal support does not have the same DFAS 10-year overlap restriction on direct payments.
If the marriage was 20 years or longer in duration, and 20 years of marriage overlapped 20 years of military service, then the former spouse is also eligible for additional benefits: medical, commissary, and exchange privileges. These additional benefits terminate when the former spouse remarries, but the benefits are revived if the subsequent marriage is terminated, too.
If you are facing divorce,
child support, or
child custody issues in the Phoenix area, contact us right away for a free consultation.