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San Antonio, TX Family Law and Military Divorce Blog

Tuesday, February 10, 2015

Military Divorce: Myth #3, Federal Law Determines a Former Spouse's Share of Military Retired Pay

In this installment of "military divorce myths," we'll look at the belief that Federal law dictates how much of the Servicemember's military retired pay a Former Spouse gets in divorce.  In other words, it doesn't matter what State a military divorce occurs in.   The outcome always is the same.  False.

This misconception arises from a misunderstanding of the Uniform Services Former Spouse Protection Act (USFSPA), a significant piece of Federal law.  The USFSPA gives States permission to divide military retired pay according to State property laws -- for the most part.  The USFSPA contains a very small set of Federal rules that preempt (i.e. override) State property law.  One significant Federal rule is that States can only divide "disposable retired pay."  Another Federal rule is that "disability compensation" (whether received from the VA or for "Chapter 61" medical retirees) is excluded from "disposable retired pay."  Overall, the point remains that there is no single rule set for dividing military retired pay that plays the same in all 50 States. 

In the end, where you get a military divorce matters -- and how the few Federal rules that override State law play into your divorce matters too!  Speak with a qualified military divorce attorney for details.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


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