Jurisdiction to Divide Military Retirement

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A military pension is often the most valuable asset in a dissolution of marriage proceeding, and it can be divided like any other asset, as long as the domestic relations court has subject-matter jurisdiction over the retirement.

Subject-Matter Jurisdiction

In 1981, the U.S. Supreme Court ruled that states did not have jurisdiction to divide a military retirement. McCarty v. McCarty, 453 U.S. 210 (1981)

The federal government acted swiftly, and one year later in 1982 enacted the Uniformed Services Former Spouses Protection Act (USFSPA), codified at 10 U.S. Code § 1408(a). Note that the USFSPA authorizes, but does not require, state courts to divide military retirement upon divorce, legal separation or annulment.

Though by now military retirement is universally divided in divorce cases, states only gradually authorized its division in the several years after the enactment of USFSPA. Colorado, for example, did not start to divide a military retirement incident to divorce until 1988, some six years after the USFSPA. In re: Marriage of Gallo, 752 P.2d 47 (Colo. 1988).

In order to divide the military pension, the USFSPA requires that the court have jurisdiction over the service member, either by his consent, or by legal residence in the state. Simply being stationed in a state, even being personally served with divorce paperwork, is not sufficient.

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: Marriage of Akins, 932 P.2d 863 (Colo. App. 1997).

Note that 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: Marriage of Booker, 833 P.2d 734 (Colo. 1992). And in the undersigned’s experience, a military member who has, for example, purchased a residence in Colorado will typically be treated as a resident, at least for purposes of jurisdiction to divide retirement.

What happens to the military retirement of a military member 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 member consents to Colorado dividing the retirement, the spouse can simply file a petition in the member's state of domicile, and ask that state to divide it instead.

In reality, while military members may at the outset of a dissolution proceeding express an objection to jurisdiction, most in the end will consent, for a variety of reasons, such as:

  • Military retirement and maintenance may well be interchangeable, with maintenance being subject to modification once the spouse commences receiving a share of retirement.
  • The judge may well award the spouse other assets to make up for the indivisible retirement
  • The spouse could simply file a petition in the military member’s state of legal residence to divide the retirement, and thanks to recent changes in federal law, the differences in how states divide retirement have largely disappeared.

Foreign Courts. The USFSPA only extends to domestic courts, however. Foreign courts have no authority to divide a military retirement. So a spouse who obtains a dissolution of marriage in Germany, for example, will need to file a petition in the state court where the service member’s is domiciled. By way of example, C.R.S. 14-10-113(1) has such a provision to divide property not previously divided in a different state at dissolution.

The 10-Year Myth About Dividing Military Retirement

To dispel the myth, as long as it has jurisdiction, any state court can divide a military retirement regardless of the length of the marriage. Courts in foreign nations cannot divide military retirements.

Nowhere is the court's authority to divide military retirement limited by the length of marriage. Many people, including a surprising number of 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"). Period. 10 U.S. Code § 1408(d)(2).

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 directly, 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. While such a change would make logistical sense for both the military member and spouse, thus far the attempts have failed.

Remarriage & Military Retirement

Finally, military retirement is a defined benefit pension which pays a monthly stipend, but it is not alimony or spousal support. As such, just as a former spouse does not surrender an IRA or 401(k) awarded to him/her upon remarrying, neither does remarriage result in forfeiture of the military retirement share.

Note, though, that if a former spouse remarried while under the age of 55, his/her SBP payments would terminate during that marriage.