The Great Divide: Military Retirement and the Uniformed Services Former Spouses Protection Act

In any divorce proceeding, the division of retirement accounts presents a financial issue that must be dealt with during the parties’ equitable division of property.  Depending on whether the parties are dividing a 401(k), IRA, Roth IRA, or any other retirement or deferred compensation plan, certain laws must be followed to ensure the correct division of the account.

When dealing with the division of military retirement pay, federal law controls, specifically the Uniformed Services Former Spouses Protection Act (U.S.F.S.P.A.), 10 U.S.C. § 1408.  Under the U.S.F.S.P. A., a former spouse can receive up to fifty (50) percent of a military service-person’s disposable retired pay.  10 U.S.C. § 1408(e).  In determining how much a service-person receives in disposable retired pay, however, always consult 10 U.S.C. § 1408(a)(4).  Under this section, disposable retired pay does not mean gross income received from a service-person’s monthly retirement payment.  Instead, disposable retired pay, in the context of a divorce proceeding, is defined as

the total monthly retired pay to which a member is entitled less amounts which (A) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-marital or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38; (C) in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list); or (D) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired pay is being made pursuant to a court order under this section.  10 U.S.C. § 1408(a)(4).

In determining the proportion of a military service person’s retired pay that is subject to equitable division in dividing marital property, the court will look at the number of years a service person served in the military, the number of years the service person was married while serving in the military, and the number of years the service person was not married while serving in the military.  Based on these figures, and in compliance with Department of Defense Regulation 7000.14-R, Volume 7B, Chapter 29, Paragraph 290607, the exact proportion of a service-person’s retired pay subject to equitable division can be determined.

Knowing the requirements of the U.S.F.S.P.A. and Department of Defense Regulations, as well as Georgia’s application of these statutes, can ensure that your military retirement is correctly divided in a divorce proceeding.

At the Sellers Law Firm, we can help to guide you through the difficult process of your divorce.  If you are a military service person or the spouse of a military service person, we can help ensure that your rights pertaining to military retirement pay are protected in your divorce.

Give us a call today for a free consultation at the Sellers Law Firm: where clients become family.