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A servicemember's military pension is often the most valuable asset in a Colorado divorce, legal separation or annulment. Since it is an asset, states can divide military retirements just like any other marital asset, as long as the Court has jurisdiction.  Each spouse should therefore know how Colorado divorce courts handle the division of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan (SBP).

 

Jurisdiction to Divide Military Retirement

In 1982, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) which permits, but does not require, state courts to divide military retirement upon divorce, legal separation or annulment. 10 U.S. Code §1408.

However, in order to divide the military pension, the Court must have jurisdiction over the servicemember, either by his consent, or by his legal residence in the state.  Simply being stationed in a state, even being personally served with divorce paperwork, is not sufficient.  However, consent does not have to be expressly given - the Court may infer consent, even from one's active participation in the dissolution proceedings, such as by filing a motion to modify child support.  In re: the Marriage of Booker, 833 P.2d 734 (Colo. 1992).

As this is federal law, Colorado courts have held that it preempts state law, and absent consent or domicile, the Colorado divorce court lacks jurisdiction to divide retirement.  Consent cannot be inferred simply from the failure to object to jurisdiction. In re: the Marriage of Akins, 932 P.2d 863 (Colo. App. 1997).

What happens to the military retirement of a servicemember who is stationed in Colorado, but a legal resident of a different state?  Is it beyond the reach of the courts?  No - rather, it means that unless the servicemember consents to Colorado dividing the retirement, the spouse can simply file a petition in the servicemember's home state, and ask that state to divide it instead.

 

The Myth About Dividing Military Pensions

First, to dispel the myth, as long as they have jurisdiction, any state, including Colorado, can and will divide a servicemember's military retirement, regardless of the length of the marriage.  Courts in foreign nations cannot divide military retirements.

Nowhere is the Colorado divorce court's authority to divide military retirement limited by the length of marriage. Many people, including some family law attorneys, believe that military retirement is only divisible if the marriage lasted at least 10 years.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse's share of the military retirement if there were at least 10 years of marriage overlapping 10 years of creditable military service (the "10/10 rule").

State courts divide military retirement for couples with fewer than 10 years of marriage all the time - it simply means that the servicemember actually has to cut the check to pay the civilian spouse, rather than DFAS making the payments.

There are periodic attempts to modify, or even eliminate, the 10/10 rule, so DFAS would pay the former spouse a court-ordered share of the retirement regardless of the length of the marriage.  The last such attempt was back in 2006 (see this article for information).  However, an attempt to revisit the USFSPA results in veterans' groups, women's groups, and others fighting over other changes they'd like to see, and the resulting fighting and controversy ultimately kills the chances of any change.

 

More Information:

Military Pay & Benefits Web Site, run by the Office of the Secretary of Defense. Describes the types of military retirement, and has a retirement calculator for each type.

DFAS Military Retirement Home Page. A wealth of information about military retirements, directly from the source!

Thrift Savings Plan web site. Obtain statements, view publications, etc.

Domestic Violence Victim Benefits for information on a spouse victim's entitlement to military retirement.

Have a military divorce case? Deployed? Black & Graham can help.

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