Military Pension Divorce Laws
- The U.S. Supreme Court, in McCarty v. McCarty (1981), declared that military pensions could not be treated as community property when a couple divorced. Before the Supreme Court decided this issue, the question of how to deal with military pensions in divorce actions varied, depending on the state where the couple filed for divorce.
- In response to the Supreme Court decision, Congress passed the Uniformed Services Former Spouse's Protection Act (USFSPA) in 1982, giving state courts the discretion to treat military pensions as community property subject to division in a divorce if they so chose.
- Under the USFSPA, the court may choose to divide a military pension between former spouses, but it is not required to do so. The law states that no more than 50 percent of the amount of disposable retired pay may be forwarded to the former spouse of a member of the military, unless there is an order for garnishment to deal with unpaid spousal or child support. In that situation, up to 65 percent of the amount of retired pay may be paid to a former spouse.
- Disposable retired pay is defined as the amount owed to a service member, less any required deductions. Required deductions include those made for overpayments or payments being made to an annuity for a spouse or a former spouse. The former spouse receiving payments from a military pension plan is required to pay taxes on the amount received.
- If the couple were married for 10 years or more during the military member's service, the former spouse may apply to receive the military pension payment directly. The direct payments will start within 90 days of the former spouse's applying for this benefit. The payments will continue until the former service member dies or the former spouse dies, whichever comes first.