Military
divorce cases are special. Call on the experience of our military divorce
attorney, a former Navy JAGC familiar with military retirement and disability
pay issues.
Introduction
In
Texas, military divorce cases offer special challenges for every attorney.
Such cases involve a complex convergence of Texas divorce laws and federal
laws such as the Uniformed Services Former Spouses Protection Act. Few
Texas lawyers are intimately familiar with the rules governing military
retirement, disability pay, Survivor Benefit Plan benefits, and other
benefits available to retired military personnel and their ex-spouses.
Federal
Law Governing Military Divorce
The
Uniformed Services Former Spouses Protection Act (the 'USFSPA")
is the federal law that authorizes state courts to divide a service
member's disposable retired pay in military divorce cases.
The
USFSPA does not provide for any particular division of the
service member's military retirement; it does not, for example, require
that the former spouse receive 50% of the member's retired pay. Rather,
it simply authorizes states to apply their own laws regarding division
of property to military retirement in military divorce cases.
Disposable
Retired Pay Under the USFSPA
Under
the USFSPA, state courts are only allowed to divide a service member's
"disposable retired pay," not the member's gross
retired pay, and not any disability pay the member receives,
in military divorce cases. The USFSPA defines "disposable retired
pay" as gross retired pay minus:
-
recoupments or repayments to the federal government;
-
deductions
from retired pay for court-martial fines or forfeitures;
-
disability
pay benefits; and
-
Survivor
Benefit Plan premiums.
The
exclusion of disability pay benefits from the definition of disposable
retired pay means that the former spouse of a service member may lose
out on hundreds or thousands of dollars per month that he or she might
otherwise have received in a division of the member's disposable retired
pay.
Direct
Payment to Former Spouses Under USFSPA
The
USFSPA further provides that, once a state court has ordered a certain
division of the service member's military retired pay in a military
divorce case, the Defense Finance and Accounting Service ("DFAS")
may provide direct payment of the former spouse's share, under certain
conditions. DFAS may provide direct payment to the former spouse where
the spouse was married to the service member for 10 years or more concurrent
with creditable service by the service member for retirement purposes.
In
other words, if the service member's creditable service for retirement
purposes overlapped with the service member's military service by 10
years of more, then the former spouse can receive direct payment of
whatever share the state court awarded the former spouse. This is often
referred to as the "ten year rule" by military divorce attorneys.
It
should be understood that even in military divorce cases where there
is not 10 years overlap between the service member's creditable service
for retirement purposes and his or her marriage to the former spouse,
the state court can still award the former spouse a share of the member's
military retirement. However, in these cases, the service member must
pay the former spouse his or her share directly, rather than relying
on DFAS to take the spouse's share "off the top" of the retired
pay the service member receives.
The
information provided above is intended only as an introduction to the
primary federal law governing military divorce and military retirement.
For advice geared toward the specifics of your military divorce case,
you should contact us and schedule a consultation with our military
divorce attorney, Mr. F. Lakhani, today.
1205
Airline Rd., Corpus Christi, Tx. 78468
Phone: 361.993.1313
Not
Certified by the Texas Board of Legal Specialization
Copyright
© 2002-2004 Flakhani.com. All rights reserved.
Disclaimer
and Terms of Use
Website
Design by Professional Business Solutions | Prosition.com
