St. Denis & Davey, P.A.

Legal Malpractice Issues

Why knowledge, skill matter in military divorce cases – II

| Jun 30, 2017 | Professional Malpractice Law |

Last time, our blog began discussing how the unfortunate reality for many of the brave men and women who have made the selfless commitment to protect our nation is that their service can take a very real toll on their home life.

Specifically, we discussed how married military couples must regularly cope with the stress created by lengthy deployments, and the performance dangerous duties, as well as long hours and frequent relocations, and how this frequently culminates in divorce.

More significantly, we began examining how those involved in military divorces — both the armed forces members and their civilian spouses — must understand that these are extremely complex legal matters. By way of illustration, we looked at the issue of “disposable retired pay.”

Have all states elected to follow the Uniformed Services Former Spouses’ Protection Act’s mandate by treating disposable retired pay as marital property?

All 50 states permit the division of military retired pay in a divorce. This doesn’t mean, however, that they follow any sort of uniform process. For example, some states have conditions that must be satisfied before division can occur, while others allow payments owed to be made while the member is still on active duty.

How is disposable retired pay divided?

In a state like Florida, which abides by an equitable division scheme, only the portion of the disposable retired pay earned during the marriage would be considered marital property subject to division. As such, the amount earned before or after the marriage would be treated as separate property and therefore not subject to division.

In addition, the USFSPA dictates that in the majority of circumstances only 50 percent of the disposable retired pay can be divided.

How would a spouse receive direct payment (i.e., monthly checks) from Defense Finance and Accounting Service?   

To recap, DFAS is the retired pay center through which the majority of servicemembers receive direct payment. Divorced spouses can similarly receive such payments if they can satisfy the 10-year test, meaning they were married to the servicemember for at least ten years and, during this time, the servicemember performed at least 10 years of service creditable toward retirement.  

What state court has jurisdiction over the division of disposable retired pay?

A state will have jurisdiction — i.e., the authority to divide a military pension — under the following circumstances:

  • The servicemember is a legal resident of the state
  • The servicemember resides in the state for non-military purposes/reasons other than assignment
  • The servicemember agrees to grant a particular state jurisdiction over the matter

We’ll conclude our discussion of this complex topic at this juncture. Our purpose in providing the foregoing information has been to demonstrate just how complex this topic is and, by extension, just how much knowledge and skill an attorney handling a military divorce must possess.

As we said last time, consider speaking with a skilled legal professional to learn more about your options if you believe that your attorney mishandled your military divorce in any capacity.