Military Divorce

Enacted on December 19, 2003, the Service Members Civil Relief Act (SCRA) used to be known as Soldiers’ and Sailors’ Civil Relief Act (SSCRA) which began at the start of World War II to protect the members called into the military. The SCRA also protects reservists and members of the National Guard. One important aspect of the SCRA is that of judgment cannot be entered against a service member without appointing an attorney for him/her.

The Uniformed Services Former Spouses Protection Act (USFSPA) gives the divorce court the authority to treat military retirement pay as marital property to be divided between the spouses in the event of divorce. Prior to the passage of the USFSPA in 1982 military retirement pay was not considered marital property, which in some situations, was the largest asset of the marriage. Military retirement pay is not a qualified pension plan but a federal entitlement, so a qualified domestic relations order is not necessary. In order for USFSPA to enforce a division of retirement pay as marital property the former spouse must have been married to the military member for at least ten years during which there was ten years of Active duty. This only applies to the ability of the former spouse to get paid their share through the Defense Finance and Accounting System (DFAS). this is a statutory requirement and not a personal right of the member that can be waived The ten-year rule does not affect the court’s aut hority to consider the military retirement pay marital property. This means that a five-year marriage to a military member with five years of service will allow the court to divide the military retirement pay granting a percentage to the former spouse.

The information necessary to draft the proper documents to divide military retired pay consists of:

names, addresses, and social security numbers of Service Member and Former Spouse.

How state court has jurisdiction to divide Service Member’s Disposable Retired Pay due to (a) residence, other than because of military assignment, (b) domicile in the territorial jurisdiction of the court, or (c) consent to the jurisdiction of the court

date of marriage

amount parties agree goes to former spouse (% to allow her to receive COLA’s)

Specific Dates of Military Service (active duty and reserve)

Rank – branch – current duty station

Whether or not former spouse will be entitled to the survivor benefit plan and who will bear the costs of the benefits. Survivor benefit plan (SBP) is good for the former spouse as it provides income for life that is tax free with guaranteed COLA; on the other hand it is inflexible, expensive, and has no cash value

It is suggested that an agreement be reached to reserve jurisdiction in the final judgment to award maintenance from benefits received which are not divisible under federal law – such as leaving the military just short of 20 years so there would be no entitlement to retired pay but member would receive a large lump sum payment or if there is no retirement but an election to “roll over” or merge the time of service into a federal government service job