Jurisdiction To Divide Military Retired Pay

Are you involved in a Colorado divorce or family law proceeding involving military retirement division? An experienced Colorado Springs divorce attorney can guide you through the legal process and assist you in exploring your options. You have one bite at the apple in the court system so make it count.

Jurisdiction to divide military pay is found under the Uniformed Services Former Spouse’s Protection Act (USFSPA). 10 U.S.C. § 1408(c)(4). Note that it is possible for a court to have jurisdiction over a divorce, however not over military retired pay. This is because divorce is governed by state law, and division of military retirement pay by federal law. A servicemember must consent to the jurisdiction of a court to divide military retirement. If a service member signs a separation agreement, there is a presumption that the member consented to jurisdiction. DoD FMR Vol. 7B, Chapter 29, ¶ 290606. For practical purposes most military personnel consent by virtue of not affirmatively objecting. Servicemembers generally consent to division of military retired pay in the jurisdiction where the dissolution is occurring to avoid a second proceeding in a different location. A court may treat the disposable retired pay as property if jurisdiction arises over the member by:

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

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

(C)    his or her consent to the jurisdiction of the court. 10 U.S.C. § 1408(c)(4).

If there has been an overlap of the marriage and military service of ten years, a former spouse may receive direct payment of their share of the pension from the Defense Finance and Accounting Service, which processes military pay. This “10/10 rule” is a condition for DFAS direct payment, not a condition on the state court’s authority to award a share of the retirement benefit. DFAS payment under property-division orders is capped at 50% of disposable retired pay. 10 U.S.C. § 1408(d)–(e).

For direct spousal payment, a property-division order must be final, valid under the issuing jurisdiction’s law, and expressly award a stated dollar amount or percentage of disposable retired pay. There are times where more than one former spouse is eligible for a servicemember’s retirement benefits. This is permitted as long as the total of the amounts paid to the former spouses does not exceed 50% of the member’s disposable retired pay. 10 U.S.C. § 1408(e)(1).

Writer’s Practice Observation: It is a common myth among some in the military population that a pension can not be divided unless there is a ten-year marriage. However that is not the case.

Turning Change Into Opportunity in Colorado Springs Divorce and Child Custody

Sabra Janko is a highly knowledgeable and experienced Colorado Springs divorce attorney who can guide you through Colorado Springs divorce and child custody matters by negotiating, mediating and litigating on your behalf. You can focus on moving to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find at here. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation. We also offer paid advice sessions for a more in-depth analysis of your case.