Family Law

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THE FIRING LINE OF MILITARY PENSION LAW UPDATE 1

Stephen C. Glassman 2

I. INTRODUCTION 3

The most complex and dynamic aspect of the military divorce is the treatment of military retired pay (sometimes referred to as the "military pension"). There are a number of fine, scholarly and practical articles dealing with military pension law. 4 They should be consulted in conjunction with the present discussion, which does not purport to be exhaustive on the subject 5 Here, it is the purpose to focus on selected practical and procedural aspects of military pension law which put the family practitioner in the line of fire. 6

II. SUMMARY HISTORY OF THE LAW OF MILITARY RETIREMENT BENEFITS

Prior to 1982, Pennsylvania, along with most other states, did not regard military retirement benefits as a divisible asset upon divorce. Among the leading exceptions to this general view was California. In re Marriage of Fithian, 10 Cal. 3d 592, 517 P.2d 449 (1974), determined that military retired pay, if vested at the time of divorce, was a marital asset subject to division as community property. Later, this same conclusion was reached even if the retirement pay had not yet vested. In re Marriage of Luciano, 104 Cal. App. 3d 956, 164 Cal. Rptr. 93 (Cal. Ct. App. 1980).

The first of the three significant landmarks in the development of national military pension law occurred in 1981, when the Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). McCarty held that federal law, as then constituted, pre-empted the application of state community property law to divide military retired pay. The second significant landmark was the Congressional response to McCarty, by the passage of the Uniformed Services Former Spouses' Protection Act, ("USFSPA" or the "Act"), 10 U.S.C. § 1408 (1982 ed. and Supp.V). The Act, which has been amended numerous times since its passage, authorized state courts to treat as community or marital property "disposable retired pay" 7 Disposable retired pay specifically excludes retired pay waived by a retired service member in order to receive veterans' disability benefits, 8 or in order to receive disability pay under 10 U.S.0 1201 et seq. 9 The third landmark was the Supreme Court decision in Mansell v. Mansel 10 Here, the Court held that the Act does not authorize state courts to treat military retired pay waived in order to receive veteran's disability benefits as marital or community property subject to division or partition.

McCarty, USFSPA and Mansell form the foundation upon which state statutory and case law is built. The date of the McCarty decision was June 26, 1981. Congress gave USFSPA retroactive effect to the date immediately prior to the decision in McCarty, except as to those cases which were final as of the date prior to the decision. 11

This raises the issue of what has been or can be done regarding cases that were open matters after June 25, 1981. In the case of Himes v. Himes, 12 the parties filed for divorce on July 7, 1982. Effective July 1, 1982, the Virginia legislature enacted Code § 20-107.3, authorizing the granting of a monetary award to equitably distribute the marital property which parties to a marriage may have accumulated. In Himes, the parties were divorced on September 8, 1982, and the court incorporated into the decree a separation agreement dated July 17, 1981, which contained a mutual release of all rights to the property owned or acquired by the other. None of the pleadings nor the PSA mentioned Mr. Himes' military pension. For purposes of this decision, the Court accepted, without deciding, that the USFSPA authorizes the courts in Virginia to treat retirement payments received after June 25, 1981, as property subject to classification under Code § 20-107.3.

However, the Court held that "retrospective application of the USFSPA in this case, resulting in the reclassification of Mr. Rimes' military pension would impair the parties' contractual rights and obligations and disturb those rights which became vested by both the contract and by the final divorce decree."

In the case of Thomas v. Thomas, 13 the parties were separated in 1982 after a 26-year marriage, and were divorced by a Final Decree of Divorce entered on November 16, 1983, incorporating a Property Settlement Agreement ("PSA"). The PSA provided inter alia that ". . . Husband agrees that all of the applicable benefits available to the Wife in accordance with Title

X, Former Spouses' Protection, Public Law 97-252, shall be made available to the Wife and that he will do all that is necessary in accordance with the said public law to ensure the receipt of all such benefits by the Wife including but not limited to the preparation and endorsement by him of any documents required in accordance with the aforesaid public law." The Court held that though it was the drafting attorney's intention to give Mrs. Thomas a portion of Mr. Thomas' pension, the language was so ambiguous that it must be read against the drafting attorney's client, Ms. Thomas. She was denied recovery. 14 In both of these cases, lack of familiarity with USFSPA sealed the fate of the non-military spouse.

Though Ms. Hines and Ms. Thomas wanted the benefits of the Act, they were denied. Others who wanted to avoid the act, nevertheless, were caught in its web. In re Marriage of Cuddy, Case No. H-54141-1, Cal. Sup. Ct. (1991), is such a case. Here, the Cuddys were married on November 7, 1959, and separated on May 20, 1977. Mr. Cuddy was on continuous active duty in the United States Navy from 1958 to 1985, when he retired with the rank of captain and began receiving retired pay. On April 30, 1979, an Interlocutory Judgment of Dissolution of marriage was issued in which the Court specifically reserved jurisdiction to "pass upon any community retirement benefits which may have accrued during the course of the marriage." On December 27, 1979, the Final Judgment of Dissolution was entered. On March 23, 1987, eight years after the final divorce, Mrs. Cuddy filed a Petition and Order to Show Cause seeking a division of Captain Cuddy's military retired pay pursuant to the reservation contained in the Interlocutory Judgment of Dissolution of Marriage. On November 2, 1987, the Superior Court entered an Order dividing the military retired pay and ordering that Captain Cuddy pay Mrs. Cuddy her share until she began receiving it directly from the Navy.

Logic would dictate that once McCarty was decided in 1981, any pre-existing reservation to divide Mr. Cuddy's military pension was nullified as to a final divorce. Nevertheless, the Alemeda Superior Court regarded itself as having jurisdiction to do so even though the final divorce pre-dated McCarty.

Pennsylvania's history of recognizing military pensions starts with Major v. Major, 359 Pa. Super. 344; 518 A.2d 1267 (1986). There, the parties were married on December 22, 1962. The husband had been a flight engineer in the Air Force from before the time of his marriage until his retirement in February 1981. On December 8, 1981, the wife filed for divorce. On December 2, 1982, the divorce was entered. Equitable distribution issues were bifurcated.

Mr. Major claimed that the Court was without authority to divide his military pension for two reasons: First, he contends that his military retirement pay is not marital property under Pennsylvania law since under Section 401(j) of the Divorce Code, all property rights not vested as of the date of divorce are terminated; and second, because the divorce was granted after McCarty, and before USFSPA. The Court cited with favor the following language from the legislative history:

Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation. However, nothing in the bill would mandate payments out of retired pay which had been disbursed during the period between the date of the McCarty decision and the effective date of this legislation. S.Rep. 502, .97 Cong., 2d Sess. 5-6, reprinted in 1982 U.S. Code Cong. & Ad. News 1555, 1596, 1599-1600.

The Court went on to hold that:

Although prior to the McCarty decision, Pennsylvania courts had not been presented with the issue of the status of military pensions, economic justice is clearly furthered by including the pension in the marital property. We believe that, had the issue been raised previously, our courts would have decided as we decide today. We find no equitable justification to penalize appellee merely because she is the first to raise the issue. Therefore, we hold that appellee did not lose her right to claim any portion of the interest she held in the military pension merely because McCarty was the law at the time the divorce was entered; the USFSPA, rather than McCarty, applies to all divorce decrees filed after McCarty, from June 25, 1981 to the present.

Good lawyering and possibly a crystal ball in Pennsylvania preserved a wife's interest in her husband's military pension in 1976 in the case of Parshall v. Parshal1. 15 Here, a property settlement agreement was executed in 1976. The parties were divorced in 1976. The equitable distribution statute for Pennsylvania was not enacted until 1980. USFSPA's retroactive effective date was June 25, 1981. However, the standard release provision contained in the usual property settlement agreement was modified by the addition of the following language: "excepting any benefits which may accrue as a result of the Husband being in the military during marriage." The wife's effort to enforce that provision against the husband's military pension was upheld in 1988.

The decisions of various state courts reflect their pre-McCarty disposition when it came to treating post-McCarty/post-USFSPA cases.

III. JURISDICTION AND USFSPA

Career military members are unique in our society in that once in the military, they are periodically moved according to military requirements. They rarely establish a permanent home after they enter the service and their tenure at a particular site is often unpredictable. USFSPA has recognized these circumstances by providing unique jurisdictional requirements which must be met before a court can divide a military pension. The Act provides that "a court may not treat the disposable retired pay of a member in the manner described in paragraph (1) [permitting division of retired pay] unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court." 16

In Pennsylvania it is possible for a military member to reside in a location "other than because of military assignment". It can be argued that a military member who resides in New Jersey, but works in Pennsylvania has chosen the Commonwealth for reasons other than because of his military assignment.

Anecdotally, this writer tried a case in Prince William County, Virginia where his client, a military member with a domicile and home of record other than Virginia, separated from his wife by leaving the marital residence in Prince William County and moved into a barracks in the District of Columbia where he was stationed. Upon being served in the District of Columbia with the Prince William County divorce action, a special appearance was filed on the basis that though the Court had jurisdiction over all matters arising from the marriage, it did not have jurisdiction over the military pension. The Court concluded that when the military member moved his family to Virginia, he consented to that jurisdiction for purpose of dividing his military pension, even though he left the jurisdiction at the time of the divorce action.

The decision by the Prince William County Court runs contrary to most reported decisions on the issue. In re Akins, 17 is a Colorado decision which held that state long-arm jurisdiction over, a non-resident divorcing service member based upon marital domicile in the state, does not confer authority upon the court to divide a military pension. 18

The second basis for jurisdiction under § 1408(c)(4) is domicile. This means domicile at the commencement of the action. Petters v. Petters. 19 Past domicile in the state is insufficient. 20

Domicile, in general, is the place of one's actual residence with the intention to remain there permanently except for temporary absences. 21 In the military, proof of a member's domicile is often burdensome.

Each member is given a "home of record" for administrative purposes when he or she enters the service. Most members incorrectly regard this as their domicile. While in the military, members may change their home of record designation. In so doing, they incorrectly conclude that they have changed domiciles. Domicile requires substantial evidence to prove the two elements of physical presence and intent to remain.

Many military members seek to establish domicile in Texas or Florida since neither state has an income tax. As is pointed out by one author, "A close analysis of most of these claims, however, reveals that there are no actions to back them up, such as ownership of property in that jurisdiction, and also [sic] that the member has never really resided in that state in the first place. 22

Domicile of a military member is a wily matter which may prove to be a burdensome pursuit in establishing jurisdiction over a military pension. Once established, the practitioner is warned that different states continue to treat military pensions differently. Where you end up may not be where you want to be.

The third basis for jurisdiction in § 1408 (c)(4) of the Act is consent. The rule as applied in Virginia is that if a service member makes a general appearance, this is deemed consent. In Kramer v. Kramer, 23 Judge Jamborsky, in citing Seeley v. Seeley, 24 and In re Marriage of Jacobson, 25 denied a motion to dismiss as to consideration of the military pension because the military member made a general appearance and requested affirmative relief. However, other jurisdictions have held to the contrary. 26 See also Gowins v. Gowins. 27

Jurisdictional issues unrelated to USFSPA are frequently confronted in military pension law cases. The recent Virginia case of Campbell v. Altizer, 28 is of note. Here, in 1986, the non­military spouse obtained a divorce by default in Arizona. The divorce decree purported to divide her husband's military pension. At the time of the action, the husband was a resident domiciliary of Virginia and did not enter an appearance is Arizona. Upon the husband's retirement in 1991, the wife sought to have her share of the pension paid directly to her from the Defense Finance and Accounting Service (DFAS). Her request was denied by DFAS on the ground that the Arizona court did not have jurisdiction over the member. She then filed a bill for equitable distribution in Virginia. The husband's demurrer to the bill was granted on the ground that under § 20-96 and 20-107.3J of the Virginia Code, the action in Virginia had to be brought within two years of her having obtained a final divorce decree in Arizona.

The case of Toomey v. Toomey, 29 presents an interesting conflict between Virginia's Court of Appeals and its Supreme Court. Here, the Court of Appeals held that where the wife was an out-of-state resident, and was served with the husband's Virginia Bill of Complaint there, this was tantamount to service by publication. Since the trial court did not have in personam jurisdiction over her, the Court reasoned that seven months after the final divorce was granted, the wife could come to Virginia to seek division of husband's military pension. The Supreme Court disagreed, finding nothing in § 20-107.3 to extend jurisdiction of the trial court past 21 days after the final decree within which it could act, since the case did not involve foreign proceedings covered by § 20-96 of the Virginia Code.

Again, anecdotally, in a recent case, this writer's client, after having been a military wife for 17 years, in 1986, was divorced by her husband pursuant to an Ohio decree. At the time of the decree, she was a resident domiciliary of Virginia and has remained so to the present. Her husband was resident in Maryland when he filed for divorce in Ohio, where he claimed his domicile. At the time of the divorce, the wife contested in personam jurisdiction. The court agreed, and an in rem divorce was granted to the husband. The husband later returned to Ohio. In 1997, the wife successfully obtained her share of the marital portion of the husband's military pension by seeking a partition of it in Ohio.

Additional discussion on the post divorce loss of Jurisdiction will be presented orally, only.

IV. DIVISION OF MILITARY PENSIONS

Under both Virginia and Pennsylvania law, military pensions may be classified as marital property subject to equitable distribution. 30 However, before a state court can pursue division of the pension, it must first determine whether there are any limitations imposed by the USFSPA as to what it May divide. There are such limitations and they are set out in § 1408(a)(4). That is part of the definition section of the Act which defines "disposable retired pay." The definition as presently stated is as follows:

The term "disposable retired pay" means the total monthly retired pay to which a member is entitled less amounts which--(A) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38; (C) in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS § 201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); or (D) are deducted because of an election under chapter 73 of this title [10 USCS § 1431 et seq.] to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this section.

On November 5, 1990, Congress enacted certain amendments to the definition of disposable retired pay. Those amendments became effective for divorces which became final on or after February 4, 1991. Because pre-November 4, 1991, divorce decrees continue to be subject of litigation, it is important to understand the old definition of "disposable retired pay" as well as the definition set forth above. The pertinent prior provisions of the definition are as follows:

The term "disposable retired pay" under the prior act means the total monthly retired pay to which a member is entitled less amounts which--

(C) are properly withheld for Federal. State, or local income tax purposes. if the withholding of such amounts is authorized or required by law and to the extent such amounts withheld are not greater than would be authorized if such member claimed all dependents to which he was entitled;

(D) are withheld under section 3402(i) of the Internal Revenue Code of 1954 (26 U.S.C. 3402(i)) if such member presents evidence of a tax obligation which supports such withholding; (emphasis added)

Under the prior definition of disposable retired pay, the division of a pension occurred after the military member's federal, state and local taxes were deducted. Therefore, if the non­military former spouse were awarded 50% of the member's retired pay, and assuming that such pay was $1,000 per month, the former spouse would not receive $500 per month; but rather, would receive 50% of the after-tax-withheld dollars. If the federal. state and local taxes amounted to $300 per month, our former spouse would receive $350 per month as the share of the member's pension. If the military member increased the amount of deductions or moved to higher tax based locations, the former spouse's share would diminish further. At the end of the year, the military member would get a tax refund since he had overpaid taxes on the share of the pension he received, while the non-military former spouse would be required to pay taxes on the already diminished share of the pension; say approximately $75 per month in our hypothetical. The result is that what was to be a 50% share is diminished to substantially less than that. Present litigation on these cases is in the nature of efforts to assure proper deductions are being taken so as to maximize the benefits to the former spouse.

In the post-1991 Amendment situation, no deduction is taken for taxes before a division. At the end of the year, each party is given a W2-P. Since the new definition of "disposable retired pay" is tantamount to gross pay in most cases, the net division of the military pension is substantially closer to what a court dividing the pension intends to be accomplished.

Another limitation on division of military retired pay is the subject of Mansell, supra at 4, n.9. Mansell and USFSPA make it patently clear that if a military member waives a portion of his retired pay in order to receive disability pay or veterans benefits in the form of periodic payments then a court cannot consider such disability pay or VA benefits in dividing retired pay. 31 However, if the parties agree that any such disability pay which reduces retired pay will not be deducted from retired pay in calculating the former spouses share, this will be upheld. 32 This concept is sometimes referred to as "supportifying" the pension division. That is, if the divisible pension is reduced by disability pay, the property settlement agreement provides that the deficiency so caused, nevertheless, will be paid by the retiree to the former spouse directly. Most courts have refused to "supportify" a diminished pension division to a former spouse by reason of disability pay without an agreement. 33

Pursuant to § 1408(a)40(B), the Act exempts from division by a court the amount of retired pay which must be waived by a retired military member pursuant to the Dual Compensation Act, 34 when he or she takes a federal job. The rationale of Mansell and its progeny would seem to dictate that a court is powerless to support a reduction of pension benefits without a property settlement agreement authorizing it. Notwithstanding Mansell, in a case where there was no property settlement agreement authorizing such action, the California Court of Appeal upheld the supportification by the trial court of a retired Navy captain when his retired pay was reduced to $52 per month upon his taking a federal job, 35 The Arizona Court of Appeals recently held that once the court has divided a military pension, the former spouse is entitled to the full amount of his or her share of the pension even if the military member takes a government job and suffers a diminution of the total pension. 36 The Court did point out contrary decisions. 37

A small adjustment was made to remedy the consequences of diminution of retired pay by reason of federal employment. Effective January 1, 1997, where an order dividing military retired pay is entered and registered with the Secretary of Defense for direct payment to a former spouse, upon the member's retirement from civilian federal service, the amount payable to the former spouse can be paid from his civil service retirement if he consents. 38

Though the implications of the dual compensation act on military retired pay is of some interest historically, because this act was recently repealed, the problems discussed above with respect to it have been rendered a nullity.

Virginia's limitation on pension division is set forth in Code § 20-107.3(G) which provides in pertinent part that ". . . the court shall only direct that payment be made as such benefits are payable," and that "no such payment shall exceed fifty percent of the marital share of the cash benefits actually received by the party against whom such an award is made."

Formerly, Code § 20-107.3(E)(8) (repealed 1988) provided that in determining the amount of the monetary award, the trial court must consider "[t]he present value of pension or retirement benefits, whether vested or nonvested." The case of Zipf v. Zipf, 39 pointed to the futility of the present value calculation requirement unless a portion of the monetary award being made is attributable to the pension. The valuation requirement has been eliminated by the legislature. As will be discussed below, there do not appear to be such limitations in Pennsylvania.

The fact that military retired pay is an "expectancy" to a military member, or that the military member and his spouse have not been married for ten years while the member has served are not limitations to division of a military pension in Virginia or Pennsylvania. 40

V. MECHANICS OF PENSION DIVISION

Subject to the federal limitations set forth above, the manner in which a state court divides a military pension is a state law prerogative. The caveat is that if the court or the parties want the former spouse's share of the pension to be paid directly to the former spouse by the military, the state court order must meet federal requirements. The first requirement which must be met before a former spouse is able to receive direct payment from the Department of Defense Finance and Accounting Service ("DFAS"), is that the parties to the divorce must have been married for ten years which period overlaps a ten-year period during which the military member has been in the service 41 As pointed out in Cook v. Cook, supra at n.39, the ten-year rule is not a requirement for empowering the state court to divide retired pay. Because of the difficulties former spouses may encounter in enforcing a division order not recognized by DFAS, where the ten-year rule is not met, alternative solutions should be explored, i.e. release of the military retirement claim for a lump sum or transfer of another asset in lieu of the pension such as the marital residence.

The next technical hurdle is how to express the division of the pension in a court order. Most division orders where the member has not yet retired use what is sometimes referred to as the "marital" or "coverture" formula. That is, the years during which the parties were married prior to separation and which overlap years of service, are divided by the number of years actually served by the member. The number so derived is multiplied by fifty percent. The result is a number which constitutes the former spouse's percentage of the pension. By example, if the member was on active duty for 20 years at the time of divorce, and of those years he was married for 10 years, the fraction is 10 years of overlapping marriage and service divided by X, the number of years he will actually serve multiplied by 50%. Assume that he serves 10 years after his divorce for a total of 30 years. The former spouse would be entitled to one half of one-third of the pension or 16.7%. There may be a basic unfairness in this formula. Assume that the member was a commander at the time of the divorce, but retired as an admiral (upper half) at the 30-year mark. Since the admiral's retired pay is almost double that of the commander, the former spouse is benefiting from achievements of the member after the divorce, both as to his promotions and the fact of his remaining on active duty. To correct this inequity, it would be proper for the former spouse to receive half of the member's retired pay, with all statutory increases such as annual COLA adjustments, as would be paid to a commander with 20 years' service at the date 1:he parties separated. In our example, this still may be unfair since the former spouse was only married for 10 years of overlapping service. Therefore, the formula could be modified to the 10 years of service.

Pennsylvania law may view the accomplishments of a military member post-divorce to be a necessary benefit to a former spouse. In the dissent in Matlock v. Matlock, 42 Judge Kelley made the following comments based upon the cited authority:

When a court orders the equitable distribution of pension benefits between former spouses, the increases in the value of the pension benefits attributable to the continued employment of the person actually accumulating the pension benefits is allocated to his or her former spouse. Holland v. Holland, 403 Pa. Super. 116, 118-19, 588 A.2d 58, 59-60 (1991), allocatur denied, 528 Pa. 611, 596 A.2d 158 (1991). This is justified by the fact that "the non-employed spouse [must] wait until some indefinite time in the future to receive the marital share." Id. at 118, 588 A.2d at 60. To determine the portion of a pension that constitutes marital property, a coverture fraction is calculated. Lowry v. Lowry, 375 Pa. Super. 382, 404, 544 A.2d 972, 983 (1988).

Judge Kelley does not comment on promotions and other achievements post marriage which would enhance the pension beyond incremental benefits following divorce.

A third alternative is to fix a sum certain which is to be paid as the former spouse's portion of retirement.

USFSPA requires that for an order to be recognized by DFAS, it must express the amount of retired pay as a fixed percentage or sum. However, the proposed regulations contained in 32 C.F.R. § 63.6 indicate that "hypothetical awards [that is a formula in an order which is issued prior to retirement where the former spouse's portion must be computed at retirement] will be computed on the basis of the member's retired pay at the time of retirement . . . and, if the order also provides for the same percentage of cost-of-living adjustments, will be converted to a percentage of current disposable pay." Prior to the adoption of these regulations, at the time of retirement the court was required to issue an additional order since it was only then that a calculation of a fixed sum or fixed percentage could be made. The temporary regulations are presently under review. A final determination is yet to be made on whether DFAS will continue to recognize hypothetical orders without additional legislation.

In Pennsylvania, there are two methods of determining a former spouse's interest in a pension. These are fully discussed in Berrington v. Berrington. 43 The pertinent discussion is as follows:

There are two basic approaches to distributing the marital property portion of an employee-spouse's pension. The first is the immediate offset method, and the second is the deferred distribution method. The immediate offset method distributes the present value of the pension benefits at the time when distribution is made. In this manner, the non-employee spouse receives an immediate distribution of marital assets in order to provide him or her with an equitable share of the pension even though the pension itself will not actually be received by the employee-spouse until sometime in the future. (Citations omitted.) The present value is the estimate of the present worth to the employee-spouse of these future benefits. (Citations omitted.)

In the immediate offset method, we begin by calculating the amount of the monthly pension benefit, assuming that the employee was at retirement age with a fully vested pension based upon compensation and plan provisions as of the date of separation. We then determine the value of the monthly benefit the employee-spouse will receive at retirement. This is computed according to the life expectancy of the employee-spouse and an appropriate interest rate. Because of the present distribution under the immediate offset method, it is then necessary to calculate the present value of the employee-spouse's pension benefits. After reducing the value of the benefits by accounting for interest rates and other contingencies, such as death, the calculation yields an actual present value of the employee-spouse's benefits payable at age 65. (Citations omitted.) It is then necessary to calculate the portion of the present value which was earned during the marriage. The present value is multiplied by the "coverture fraction" to equal the present value of the entitlement which was acquired during the marriage. The numerator of the fraction equals the total period of time the employee-spouse participated in the plan from the date of marriage until the date of separation. The denominator equals the total period of time the employee-spouse participated in the pension benefits program. After determining the non-employee-spouse's interest in the employee-spouse's pension benefits, the total of the non-employee-spouse's award is offset by distributing other marital property or by ordering payment to the non-employee-spouse.

The second method of distributing the marital property portion of the employee-spouse's pension, the deferred distribution method, requires the trial court to retain jurisdiction and distribute the pension benefits as of the benefit determination date. Under this method, present value figures are not used. Rather, the coverture fraction is multiplied by the value of the employee-spouse's pension benefits on the benefit determination date. (Citations omitted.)

The immediate offset method, because It effectuates an immediate and final distribution of retirement benefits, has the advantage of avoiding continued hostility between the parties. (Citations omitted.) On the other hand s there are instances in which the deferred distribution method is clearly the preferable, sometimes the essential, way of proceeding. Deferred distribution is the preferred method of equitably valuing arid distributing "unvested" retirement benefits which may never actually be received by the employee-spouse because of the possibility of death or termination of employment before vesting. To insure that the employee-spouse will not be forced to distribute a portion of the marital estate to offset an award of a pension which may never vest, the non-employee-spouse is given an equitable share of the pension benefits only after they become non-forfeitable to the employee-spouse. In such cases, the deferred distribution method divides equally the risk of forfeiture between the parties. Deferred distribution is also preferred when the parties' other marital assets are insufficient to offset an award of a share of the marital property portion of the pension to the non-employee-spouse.

Most military families do not have sufficient assets to offset the present value of the military pension with existing marital assets. Therefore, in most cases the deferred distribution method will probably serve the situation best. Contrary to the Court's view, there are formulas which do not require a supplemental order at retirement date so long as the military is prepared to compute the formula contained in the order.

Present values of pension benefits are usually derived from actuaries, accountants or economists. Financial planners and insurance agents often are capable of making these calculations. As well, there appear to be computer programs which accomplish this goal.

The reserve and national guard pensions are usually divided differently than the active duty pension. The reason is that reservists receive retirement at age 60 based upon the number of retirement points earned during their careers. Therefore, if one were to calculate the marital or coverture formula for a reservist's pension, first take the number of points earned by the reservist during the marriage to separation and divide it by the number of points earned over the course of the military career. The number so derived is the portion of retirement pay earned during the marriage. If this is multiplied by 50%, the marital portion of the retirement is the result.

To calculate reserve retirement pay on a time basis is unfair, and is not related to the circumstances. In a recent case, a Pennsylvania master called this writer from the bench on a reserve case. When confronted with the alternative methods of calculation which could be applied, he decided to avoid the entire problem by awarding a fixed sum plus COLA. The case remains unresolved because the COLA aspect of the order will not be recognized by DFAS.

VI. SURVIVOR BENEFIT PLAN ("SBP")

V a. Code Ann. § 20-107.3G(2) (1997) provides that

To the extent permitted by federal or other applicable law, the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy. The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.

This section authorized Virginia Courts to divide survivor benefits which may be available incident to military SBP. Prior to its enactment in 1990, Virginia courts could not divide survivor benefits despite an implementing federal statute. 44

Pennsylvania law appears to have authorized judicial treatment of military survivor benefit plans since federal law granted such authority. 45

SBP was enacted in 1972 to provide a monthly pension to surviving spouses of retired military members. 46 hi 1982, the coverage expanded and was provided to former spouses. In 1986, authority was granted to state courts to order benefits in favor of former spouses.

SBP provides members of the uniformed services with the opportunity to provide up to 55% of their gross retired pay as an annuity to designated beneficiaries. Courts can order that benefit to a former spouse. Once such an order is filed with DFAS, all prior SBP elections are terminated. As to former spouses, the election or order may be made before the member retires or thereafter. The former spouse must have been married to the member for one year. If the member fails to make the election, the former spouse may do so if correctly done within one year from the final divorce. A certified copy of the order must be forwarded and received by DFAS within the one year threshold. The monthly premium for maximum benefits is 6.5% of gross military retired pay. The premium is not taxed. State courts can order that the premiums be paid as they may determine. However, if the court orders one party to pay all of the premiums, and the court or the parties want the order to be recognized by DFAS for payment of divided pension benefits, the only way to couch the order is to adjust the percentage of pension benefits provided to the parties so as to approximate the cost of premiums. This is because premiums are collected by reducing the amount of retired pay a participant or his former spouse is paid. The premium is adjusted downward if the election is less than full benefits, either by percentage or by a fixed dollar amount.

The former spouse suffers a reduction from 55% of retiree's base pay to 35% of benefits once the former spouse reaches age 62 and is entitled to Social Security benefits based upon the military member's earnings. If a former spouse is under age 55 and remarries, the benefit is lost until the former spouse is again widowed or divorced. However, if the remarriage is to one who provides SBP benefits and the former spouse is again divorced, the former spouse cannot collect on both. Remarriage after 55 does not have an SBP consequence.

A member cannot disenfranchise his spouse or former spouse without his or her consent, unless the former spouse fails to timely file an order or agreement providing SBP benefits. If it is not timely filed, the member can provide the benefit to a second spouse, and the former spouse would be disenfranchised. Once disenfranchised, the only remedy may to file an application with a Board for Correction of Military Records. Even this remedy will not work if a second spouse has become a beneficiary.

There is a real question as to whether SBP or insurance serves the best interests of the divorcing military family in a particular case. An analysis of both should be accomplished before recommending either alternative.

VII. MATLOCK v. MATLOCK

This case is a prime example of how the complexities of dividing a military pension and awarding survivor benefits can create a litigation nightmare where the schooled military member takes on the less well-informed civilian bar and pension specialists.

VIII. THE PENSION

To be recognized by DFAS, a certified copy of an order served on DFAS must be less than 90 days old along with an Application for Former Spouse Payments From Retired Pay (DD Form 2293).

IX. ACCRUED LEAVE

The retiring member often terminates his service with accrued leave which converts to a lump sum payment upon termination of service. There is a question as to whether this or separation pay may be subject to division by a state court.

X. HEALTH AND LIFE INSURANCE

There are various health and life insurance benefits available to the retiring members and their former spouses. 47 These should be reviewed in combination with commercial products to determine the best coverage for your client's situation.

XI. BANKRUPTCY AND THE MILITARY PENSION

The scope of the present discussion does not include bankruptcy. Generally, bankruptcy courts will not include future pension payments to a former spouse as an asset of the bankrupt estate. However, unless an order or property settlement agreement treats past due payments received by the military member but owed to the former spouse as support or otherwise regards the member as a trustee for the former spouse under a trust provision, such accrued pension payments received by the member may be discharged.

XII. SOURCE MATERIAL

DFAS has a web site which provides significant information on many of the topics covered in this presentation. See www.dfas.mil.

The point of contact for the military services is Defense Finance and Accounting Service, Cleveland Center (Code L), P.O. Box 998002, Cleveland, Ohio 44199. The Coast Guard is Commanding Officer (L), Pay and Personnel Center, 444 Quincy Street, Topeka, Kansas 66683. The Public Health Service is Office of General Counsel, Department of Health and Human Services, (Room 5362), 330 Independence Avenue, S.W., Washington, D.C. 20201.

XIII. CONCLUSION

The world of military retirement has been, and, no doubt, will continue to change rapidly. The practitioner is compelled to keep pace with those changes so as to faithfully serve his or her client. To do so is to revisit the issues presented here regularly, as well as pursue those issues which were not the scope of this article. Much of the litigation in this area arises from bad timing and missed details. Meeting those requirements is the cure.


1 This presentation is in part based upon an article which appeared in the Virginia Lawyer in December, 1997, Volume 46 No. 5. The reason that Virginia forms a significant part of the discussion is because Virginia has one of the largest military and military retiree populations in the nation. As a result, its courts have had a significant number of opportunities to consider matters relating to the military divorce.

2 Mr. Glassman is the founder of the Military Law Section of the Virginia State Bar, he is a retired reserve captain in the Navy Judge Advocate General's Corps and practices in Tyson's Corner, Virginia as a partner in the firm of Glassman & Bullock.

3 The present discussion is a combination of an article submitted for publication to the Virginia State Bar Journal and an outline for a CLE seminar to be delivered at the Pennsylvania Bar in January, 1998. The coincidence of identical submission dates caused an emphasis on Virginia and Pennsylvania case and statutory law. The advantage to the Pennsylvania Bar from this combination is that Virginia has one of the highest per capita indigenous military and military retired populations of any state. Therefore, its case law is instructive to equitable distribution jurisdictions with less military activity.

4 See Marshall S. Willick, Military Retirement Benefits in Divorce: A Lawyer's Guide to Valuation and Distribution, Section of Family Law, ABA, 1998. Mark E. Sullivan, Military Pension Division: Crossing the Minefield, 31 Fam. L.Q. 19 (1997); and Michelle Landever Bond & Arthur R. Landever, The Uniformed Services Former Spouses' Protection Act: A Practitioner's Guide, 10 Am. Journal Fam. Law 145 (1996).

5 Issues which may be missed include the implication of bankruptcy on military pensions, collateral benefits in the divorcing military family such as insurance and medical benefits, tax implications, valuation problems in military pension law.

6 Smith v. Lewis, 530 P.2d 589 (Cal. 1975), is the oft-cited malpractice case predating enactment of the Uniformed Services Former Spouses' Protection Act (USFSPA), where counsel did not consider National Guard retirement in a community property state which had historically divided military pensions prior to USFSPA. See also Aloy v. Mash, 696 P. 2d 656 (Cal. 1985) and Bross v. Denny, 791 S.W.2d 416 (Mo. Ct. App. 1990). Other areas of potential malpractice will be discussed a pertinent parts of the text.

7 10 U.S.C. §1408(c)(1) (1997).
10 U.S.C. §
1408(a)(4)(B). 10 U.S.C. §
1408(a)(4).

10 490 U.S. 581, 109 S.Ct. 2023 (1989).

11 10 U.S.C. § 1408(c)(1) provides that ". . . a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." However, this retroactive authority did not apply to cases which were already final on June 25, 1981. Therefore, this section also provides: "A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member's spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member's spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse."

12 12 Va. App. 966,969; 407 S.E.2d 694, 693; 1991 Va. App. LEXIS 184 (1991).

13 36 Va. Cir. 427; 1995 Va. (FFCo) Cir. LEXIS 1237 (1995).

14 The Court pointed out that notwithstanding the enactment of USFSPA, its view was that Virginia did not empower its courts to divide military pensions until the 1985 amendments to § 20-107.3 became effective on July 1, 1985.

15 385 Pa. Super. 142; 560 A.2d 207 (1989).

16 10 § 1408(c)(4).

17 C010. Ct. App., No. 95CA2144, 23 FLR 1151 (1/23/97).

18 The Court cited with favor In re Booker, 833 P.2d 734, 18 FLR 1433 (Colo. Sup. Ct. 1992); Steel v.
U.S., 813 F.2d 1545, 13 FLR 1313 (CA 9 1987); and Lewis v. Lewis, 695 F.Supp. 1089, 14 FLR 1595 (DC Nev 1988) as standing for the proposition that § 1408(c)(4) is a limitation on a court's subject matter jurisdiction over military pensions.

19 560 So. 2d 722, 16 FLR 1291 (Miss. Super. Ct. 1990). See also In re Hattis, 242 Cal. Rptr. 410, 14
FLR 1113 (Ct. App. 1987).

20 In re Mortenson, 409 N.W.2d 20, 13 FLR 1491 (Minn. Ct. App. 1987).

21 In re Akins, supra at 10 n.16.

22 Sullivan, supra at 2 11.3.

23 19 Va. Cir. 231; 1990 Va. Cir. (FFCo) LEXIS 72.

24 690 S.W.2d 626 (Tex. App. 3 Dist. 1985).

25 161 Ca1.App.3d 465, 207 Cal. Rptr. 512 (1984).

26 Tucker v. Tucker, 277 Cal. Rptr. 403 (Cal. Ct. App. 1991); Flora v. Flora, 603 A.2d 723 (R.I. 1992); Mortenson v. Mortenson, 409 N.W.2d 20, 13 FLR 1491 (Minn. Ct. App. 1987); Hattis v. Hattis, 242 Cal. Rptr. 410, 14 FLR 1113 (CL App. 1987).

27 466 So. 2d 32 (La. 1985).

28 19 Va. App. 553; 453 S.E.2d 570 (1995).

29 251 Va. 168, 465 S.E.2d 838 (1996); 19 Va. App. 756, 454 S.E.2d 735 (Va. App. 1995).

30 Holmes v. Holmes, 7 Va. App. 472, 478, 375 S.E.2d 387, 391 (1988); Sawyer v. Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 279-80 (1985); Major v. Major, supra at 7.

31 Lambert v. Lambert, 10 Va. App. 623, 395 S.E.2d 207, 209 (1990); Keough v. Keough, 1997 Va. App. LEXIS 301 (Record No. 2140-96-4) (Not designated for publication); Martin v. Martin, 385 Pa. Super. 554; 561 A.2d 1231 (1989); Miller v. Miller, 395 Pa. Super. 255; 577 A.2d 205 (1990).

32 Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992).

33 Bewlwy v. Bewlwy, 116 Idaho 845, 780 P.2d 596 (Ct. App. 1989); and Jones v. Jones, Haw. App. 780 P.2d 581 (1989).

34 5 U.S.C. § 5532.

35 In re Marriage of Cuddy, (Cal. App. No. A053945, 1990) (Unpublished).

36 In re Caddis, 2 CA-CV 96-0315, 23 FLR 1502 (8/14/97)

37 Moon v. Moon, 795 S.W.2d 511, 16 FLR 1475 (Mo. Ct. App. 1990); and Knoop v. Knoop, 542 N.W.2d 114, 22 FLR 113 (N.D. Sup. CL 1996).

38 5 U.S.C. § 8332(c)(4).

39 8 Va. App. 387; 382 S.E.2d 263 (Va. App. 1989).

40 Cook v. Cook, 18 Va. App. 726; 446 S.E.2d 894 (Va. App. 1994); Metzger v. Metzger, 369 Pa. Super. 17; 534 A.2d 1057 (1987).

41 10 U.S.C. § 1408(d)(2).

42 444 Pa. Super. 507; 664 A.2d 551 (1995).

43 409 Pa. Super. 355; 598 A.2d 31 (1991).

44 Havird v. Havird, 1995 Va. App. LEXIS 19 (Va. App. 1923-93-1, Record No. 0954-93-1).

45 Pa. C.S. § 3502.

46 10 U.S.C. § 1447-1455.

47 Stephen C. Glassman, From Civil Servants to Soldiers, 13 Family Advocate 40 (Fall 1990).

UNITED STATES CODE SERVICE
Copyright 2001, LEXIS Law Publishing, a division of Reed Elsevier Inc.
All rights reserved.
*** CURRENT THROUGH P.L. 107-7, APPROVED 4/12/01 ***

TITLE 10. ARMED FORCES
SUBTITLE A. GENERAL MILITARY LAW
PART II. PERSONNEL
CHAPTER 71. COMPUTATION OF RETIRED PAY

10 USCS § 1408 (2001)

§ 1408. Payment of retired or retainer pay in compliance with court orders

(a) Definitions. In this section:

(1) The term "court" means-

(A) any court of competent jurisdiction of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands;

(B) any court of the United States (as defined in section 451 of title 28) having competent jurisdiction;

(C) any court of competent jurisdiction of a foreign county with which the United States has an agreement requiring the United States to honor any court order of such country; and

(D) any administrative or judicial tribunal of a State competent to enter orders for support or maintenance (including a State agency administering a program under a State plan approved under part D of title IV of the Social Security Act [42 USCS §§ 6.51 et seq.)), and, for purposes of this subparagraph, the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.

(2) The term "court order" means a final decree of divorce, dissolution, annulment, or legal separation issued by a court, or a court ordered, ratified, or approved property settlement incident to such a decree (including a final decree modifying the terms of a previously issued decree of divorce, dissolution, annulment, or legal separation, or a court ordered, ratified, or approved property settlement incident to such previously issued decree), or a support order, as defined in section 453(p) of the Social Security Act (42 U.S.0 653(p)), which-

(A) is issued in accordance with the laws of the jurisdiction of that court;

(B) provides for-

(i) payment of child support (as defined in section 459(i)(2) of the Social Security Act (42 U.S.C. 659(i)(2)));

(ii) payment of alimony (as defined in section 459(i)(3) of the Social Security Act (42 U.S.C. 659(i)(3))); or

(iii) division of property (including a division of community property); and

(C) in the case of a division of property, specifically provides for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay of a member to the spouse or former spouse of that member.

(3) The term "final decree" means a decree from which no appeal may be taken or from which no appeal has been taken within the time allowed for taking such appeals under the laws applicable to such appeals, or a decree from which timely appeal has been taken and such appeal has been finally decided under the laws applicable to such appeals.

(4) The term "disposable retired pay" means the total monthly retired pay to which a member is entitled less amounts which--

(A) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay;

(B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38;

(C) in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §.1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); or

(D) are deducted because of an election under chapter 73 of this title [10 USCS §§ 1431 et seq.] to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this section.

(5) The term "member" includes a former member entitled to retired pay under section 12731 of this title.

(6) The term "spouse or former spouse" means the husband or wife, or former husband or wife, respectively, of a member who, on or before the date of a court order, was married to that member.

(7) The term "retired pay" includes retainer pay.

(b) Effective service of process. For the purposes of this section--

(1) service of a court order is effective if-

(A) an appropriate agent of the Secretary concerned designated for receipt of service court orders under regulations prescribed pursuant to subsection (i) or, if no agent has been so designated, the Secretary concerned, is personally served or is served by facsimile or electronic transmission or by mail;

(B) the court order is regular on its face;

(C) the court order or other documents served with the court order identify the member concerned and include, if possible, the social security number of such member; and

(D) the court order or other documents served with the court order certify that the rights of the member under the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. 501 et seq.) were observed; and

(2) a court order is regular on its face if the order--

(A) is issued by a court of competent jurisdiction;

(B) is legal in form; and

(C) includes nothing on its face that provides reasonable notice that it is issued without authority of law.

(c) Authority for court to treat retired pay as property of the member and spouse.

(1) Subject to the limitations of this section, a court may teat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member's spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member's spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse.

(2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse. Payments by the Secretary concerned under subsection (d) to a spouse or former spouse with respect to a division of retired pay as the property of a member and the member's spouse under this subsection may not be treated as amounts received as retired pay for service in the uniformed services.

(3) This section does not authorize any court to order a member to apply for retirement or retire at a particular time in order to effectuate any payment under this section.

(4) A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.

(d) Payments by Secretary concerned to (or for benefit of) spouse or former spouse.

(I) After effective service on the Secretary concerned of a court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse of the member, the Secretary shall make payments (subject to the limitations of this section) from the disposable retired pay of the member to the spouse or former spouse (or for the benefit of such spouse or former spouse to a State disbursement unit established pursuant to section 454B of the Social Security Act [42 USCS § 654b1 or other public payee designated by a State, in accordance with part D of title IV of the Social Security Act [42 USCS §§ 651 et seq.], as directed by court order, or as otherwise directed in accordance with such part 0) in an amount sufficient to satisfy the amount of child support and alimony set forth in the court order and, with respect to a division of property, in the amount of disposable retired pay specifically provided for in the court order. In the case of a spouse or former spouse who, pursuant to section 408(a)(3) of the Social Security Act (42 U.S.C. 608(a)[(3)](4)), assigns to a State the rights of the spouse or former spouse to receive support, the Secretary concerned may make the child support payments referred to in the preceding sentence to that State in amounts consistent with that assignment of rights. In the case of a member entitled to receive retired pay on the date of the effective service of the court order, such payments shall begin not later than 90 days after the date of effective service. In the case of a member not entitled to receive retired pay on the date of the effective service of the court order, such payments shall begin not later than 90 days after the date on which the member first becomes entitled to retired pay.

(2) If the spouse or former spouse to whom payments are to be made under this section was riot married to the member for a period of 10 years or more during which the member performed at least -10 years of service creditable in determining the member's eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and his spouse.

(3) Payments under this section shall not be made more frequently than once each month, and the Secretary concerned shall not be required to vary normal pay and disbursement cycles for retired pay in order to comply with a court order.

(4) Payments from the disposable retired pay of a member pursuant to this section shall terminate in accordance with the terms of the applicable court order, but not later than the date, of the death of the member or the date of the death of the spouse or former spouse to whom payments are being made, whichever occurs first.

(5) If a court order described in paragraph (1) provides for a division of property (including a division of community property) in addition to an amount of child support or alimony or the payment of an amount of disposable retired pay as the result of the court's treatment of such pay tinder subsection (c) as property of the member and his spouse, the Secretary concerned shall tray (subject to the limitations of this section) from the disposable retired pay of the member to the spouse or former spouse of the member, any part of the amount payable to the spouse or former spouse under the division of property upon effective service of a final court order of garnishment of such amount from such retired pay.

(6) In the case of a court order for which effective service is made on the Secretary concerned on or after the date of the enactment of this paragraph and which provides for payments from the disposable retired pay of a member to satisfy the amount of child support set forth in the order, the authority provided in paragraph (I) to make payments from the disposable retired pay of a member to satisfy the amount of child support set forth in a court order shall apply to payment of any amount of child support arrearages set forth in that order as well as to amounts of child support that currently become due.

(7) (A) The Secretary concerned may not accept service of a court order that is an out-of-State modification, or comply with the provisions of such a court order, unless the court issuing that order has jurisdiction in the manner specified in subsection (c)(4) over both the member and the spouse or former spouse involved.

(B) A court order shall be considered to be an out-of-State modification for purposes of this paragraph if the order-

(i) modifies a previous court order under this section upon which payments under this subsection are based; and

(ii)is issued by a court of a State other than the State of the court that issued the previous court order.

(e) Limitations.

(1) The total amount of the disposable retired pay of a member payable under all court orders pursuant to subsection (c) may not exceed 50 percent of such disposable retired pay.

(2) In the event of effective service of more than one court order which provide for payment to a spouse and one or more former spouses or to more than one former spouse the disposable retired pay of the member shall be used to satisfy (subject to the limitations of paragraph (1)) such court orders on a first-come, first-served basis. Such court orders shall be satisfied (subject to the limitations of paragraph (1)) out of that amount of disposable retired pay which remains after the satisfaction of all court orders which have been previously served.

(3) (A) In the event of effective service of conflicting court orders under this section which assert to direct that different amounts be paid during a month to the same spouse or former spouse of the same member, the Secretary concerned shall--

(1) pay to that spouse from the member's disposable retired pay the least amount directed to be paid during that month by any such conflicting court order, but not more than the amount of disposable retired pay which remains available for payment of such courts orders based on when such court orders were effectively served and the limitations of paragraph (I) and subparagraph (B) of paragraph (4);

(ii) retain an amount of disposable retired pay that is equal to the lesser of-

(I) the difference between the largest amount required by any conflicting court order to be paid to the spouse or former spouse and the amount payable to the spouse or former spouse under clause (i); and

(II) the amount of disposable retired pay which remains available for payment of any conflicting court order based on when such court order was effectively served and the limitations of paragraph (1) and subparagraph (B) of paragraph (4); and

(iii) pay to that member the amount which is equal to the amount of that member's disposable retired pay (less any amount paid during such month pursuant to legal process served under section 459 of the Social Security Act (42 U.S.C. 659) and any amount paid during such month pursuant to court orders effectively served under this section, other than such conflicting court orders) minus--

(I) the amount of disposable retired pay paid under clause (i); and

(II) the amount of disposable retired pay retained under clause (ii).

(B) The Secretary concerned shall hold the amount retained under clause (ii) of subparagraph (A) until such time' as that Secretary is provided with a court order which has been certified by the member and the spouse or former spouse to be valid and applicable to the retained amount. Upon being provided with such an order, the Secretary shall pay the retained amount in accordance with the order.

(4) (A) In the event of effective service of a court order under this section and the service of legal process pursuant to section 459 of the Social Security Act (42 U.S. C 659), both of which provide for payments during a month from the same member, satisfaction of such court orders and legal process from the retired pay of the member shall be on a rust-come, first-served basis. Such court orders and legal process shall be satisfied out of moneys which are subject to such orders and legal process and which remain available in accordance with the limitations of paragraph (1) and subparagraph (B) of this paragraph during such month after the satisfaction of all court orders or legal process which have been previously served.

(B) Notwithstanding any other provision of law, the total amount of the disposable retired pay of a member payable by the Secretary concerned under all court orders pursuant to this section and all legal processes pursuant to section 459 of the Social Security Act (42 U.S.C. 659) with respect to a member may not exceed 65 percent of the amount of the retired pay payable to such member that is considered under section 462 of the Social Security Act (42 U.S.C. 662) to be remuneration for employment that is payable by the United States.

(5) A court order which itself or because of previously served court orders provides for the payment of an amount which exceeds the amount of disposable retired pay available for payment because of the limit set forth in paragraph (1), or which, because of previously served court orders or legal process previously served under section 459 of the Social Security Act (42 U.S.C. 659), provides for payment of an amount that exceeds the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4), shall not be considered to be irregular on its face solely for that reason. However, such order shall be considered to be fully satisfied for purposes of this section by the payment to the spouse or former spouse of the maximum amount of disposable retired pay permitted under paragraph (1) and subparagraph (B) of paragraph (4).

(6) Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided under this section in any case in which the maximum amount permitted under paragraph (1) has been paid and under section 459 of the Social Security Act (42 U.S. C. 659) in any case in which the maximum amount permitted under subparagraph (B) of paragraph (4) has been paid.

(f) Immunity of officers and employees of United States.

(I) The United States and any officer or employee of the United States shall not be liable with respect to any payment made from retired pay to any member, spouse, or former spouse pursuant to a court order that is regular on its face if such payment is made in accordance with this section and the regulations prescribed pursuant to subsection (i). (2) An officer or employee of the United States who, under regulations prescribed pursuant to subsection (1), has the duty to respond to interrogatories shall not be subject under any law to any disciplinary action or civil or criminal liability or penalty for, or because of, any disclosure of information made by him in carrying out any of his duties which directly or indirectly pertain to answering such interrogatories.

(g) Notice to member of service of court order on Secretary concerned. A person receiving effective service of a court order under this section shall, as soon as possible, but not later than 30 days after the date on which effective service is made, send a written notice of such court order (together with a copy of such order) to the member affected by the court order at his last known address.

(h) Benefits for dependents who are victims of abuse by members losing right to retired pay.

(1) If, in the case of a member or former member of the armed forces referred to in paragraph (2)(A), a court order provides (in the manner applicable to a division of property) for the payment of an amount from the disposable retired pay of that member or former member (as certified under paragraph (4)) to an eligible spouse or former spouse of that member or former member, the Secretary concerned, beginning upon effective service of such court order, shall pay that amount in accordance with this subsection to such spouse or former spouse.

(2) A spouse or former spouse of a member or former member of the armed forces is eligible to receive payment under this subsection if--

(A) the member or former member, while a member of the armed forces and after becoming eligible to be retired from the armed forces on the basis of years of service, has eligibility to receive retired pay terminated as a result of misconduct while a member involving abuse of a spouse or dependent child (as defined in regulations prescribed by the Secretary of Defense or, for the Coast Guard when it is not operating as a service in the Navy, by the Secretary of Transportation); and

(B) the spouse or former spouse--

(i) was the victim of the abuse and was married to the member or former member at the time of that abuse; or (ii) is a natural or adopted parent of a dependent child of the member or former member who was the victim of the abuse.

(3) The amount certified by the Secretary concerned under paragraph (4) with respect to a member or former member of the armed forces referred to in paragraph (2)(A) shall be deemed to be the disposable retired pay of that member or former member for the purposes of this subsection.

(4) Upon the request of a court or an eligible spouse or former spouse of a member or former member of the armed forces referred to in paragraph (2)(A) in connection with a civil action for the issuance of a court order in the case of that member or former member, the Secretary concerned shall determine and certify the amount of the monthly retired pay that the member or former member would have been entitled to receive as of the date of the certification--

(A) if the member or former member's eligibility for retired pay had not been terminated as described in paragraph (2)(A); and

(B) if, in the case of a member or former member not in receipt of retired pay immediately before that termination of eligibility for retired pay, the member or former member had retired on the effective date of that termination of eligibility.

(5) A court order under this subsection may provide that whenever retired pay is increased under section 1401a of this title (or any other provision of law), the amount payable under the court order to the spouse or former spouse of a member or former member described in paragraph (2)(A) shall be increased at the same time by the percent by which the retired pay of the member or former member would have been increased if the member or former member were receiving retired pay.

(6) Notwithstanding any other provision of law, a member or former member of the armed forces referred to in paragraph (2)(A) shall have no ownership interest in, or claim against, any amount payable under this section to a spouse or former spouse of the member or former member.

(7) (A) If a former spouse receiving payments under this subsection with respect to a member or former member referred to in paragraph (2)(A) marries again after such payments begin, the eligibility of the former spouse to receive further payments under this subsection shall terminate on the date of such marriage.

(B) A person's eligibility to receive payments under this subsection that is terminated under subparagraph (A) by reason of remarriage shall be resumed in the event of the termination of that marriage by the death of that person's spouse or by annulment or divorce. The resumption of payments shall begin as of the first day of the month in which that marriage is so terminated. The monthly amount of the payments shall be the amount that would have been paid if the continuity of the payments had not been interrupted by the marriage.

(8) Payments in accordance with this subsection shall be made out of funds in the Department of Defense Military Retirement Fund established by section 1461 of this title or, in the case of the Coast Guard, out of funds appropriated to the Department of Transportation for payment of retired pay for the Coast Guard.

(9) (A) A spouse or former spouse of a member or former member of the armed forces referred to in paragraph (2)(A), while receiving payments in accordance with this subsection, shall be entitled to receive medical and dental care, to use commissary and exchange stores, and to receive any other benefit that a spouse or a former spouse of a retired member of the armed forces is entitled to receive on the basis of being a spouse or former spouse, as the case may be, of a retired member of the armed forces in the same manner as if the member or former member referred to in paragraph (2)(A) was entitled to retired pay.

(B) A dependent child of a member or former member referred to in paragraph (2)(A) who was a member of the household of the member or former member at the time of the misconduct described in paragraph (2)(A) shall be entitled to receive medical and dental care, to use commissary and exchange stores, and to have other benefits provided to dependents of retired members of the armed forces in the same manner as if the member or former member referred to in paragraph (2)(A) was entitled to retired pay.

(C) If a spouse or former spouse or a dependent child eligible or entitled to receive a particular benefit under this paragraph is eligible or entitled to receive that benefit under another provision of law, the eligibility or entitlement of that spouse or former spouse or dependent child to such benefit shall be determined under such other provision of law instead of this paragraph.

(10) (A) For purposes of this subsection, in the case of a member of the armed forces who has been sentenced by a court-martial to receive a punishment that will terminate the eligibility of that member to receive retired pay if executed, the eligibility of that member to receive retired pay may, as determined by the Secretary concerned, be considered terminated effective upon the approval of that sentence by the person acting under section 860(c) of this title (article 60(c) of the Uniform Code of Military Justice).

(B) If each form of the punishment that would result in the termination of eligibility to receive retired pay is later remitted, set aside, or mitigated to a punishment that does not result in the termination of that eligibility, a payment of benefits to the eligible recipient under this subsection that is based on the punishment so vacated, set aside, or mitigated shall cease. The cessation of payments shall be effective as of the first day of the first month following the month in which the Secretary concerned notifies the recipient of such benefits in writing that payment of the benefits will cease. The recipient may not be required to repay the benefits received before that effective date (except to the extent necessary to recoup any amount that was erroneous when paid).

(11) In this subsection, the term "dependent child", with respect to a member or former member of the armed forces referred to in paragraph (2)(A), means an unmarried legitimate child, including an adopted child or a stepchild of the member or former member, who-- -

(A) is under 18 years of age;

(B) is incapable of self-support because of a mental or physical incapacity that existed before becoming 18 years of age and is dependent on the member or former member for over one-half of the child's support; or

(C) if enrolled in a full-time course of study in an institution of higher education recognized by the Secretary of Defense for the purposes of this subparagraph, is under 23 years of age and is dependent on the member or former member for over one-half of the child's support.

(i) Certification date. It is not necessary that the date of a certification of the authenticity or completeness of a copy of a court order for child support received by the Secretary concerned for the purposes of this section be recent in relation to the date of receipt by the Secretary.

(j) Regulations. The Secretaries concerned shall prescribe uniform regulations for the administration of this section.

(k) Relationship to other laws. In any case involving an order providing for payment of child support (as defined in section 459(i)(2) of the Social Security Act [42 USCS § 659(i)(2)]) by a member who has never been married to the other parent of the child, the provisions of this section shall not apply, and the case shall be subject to the provisions of section 459 of such Act (42 USCS § 659].

HISTORY: (Added Sept. 8, 1982, P.L. 97-252, Title X, § 1002(a), 96 Stat. 730; Oct. 19, 1984, P.L. 98-525, Title VI, Part E, § 643(a)-(d), 98 Stat. 2547; Nov. 14, 1986, P.L. 99-661, Div A, Title VI, Pan D, § 644(a), 100 Stat. 3887; April 21, 1987, P.L. 100-26, §§ 3(3) in part, 7(h)(1) in part, 101 Stat. 273, 282; Nov. 29, 1989, P.L. 101-189, Div A,

Title VI, Part F, § 653(a)(5), Title XVI, Part C, § 1622(e)(6), 103 Stat. 1462, 1605; Nov. 5, 1990, P.L. 101-510, Div A, Title V, Part E, § 555(a)-(d), (f), (g), 104 Stat. 1569, 1570; Dec. 5, 1991, P.L. 102-190, Div A, Title X, Part E, § 1061(a)(7), 105 Stat. 1472; Oct. 23, 1992, P.L. 102-484, Div A, Title VI, Subtitle E, § 653(a), 106 Stat. 2426; Nov. 30, 1993, P.L. 103-160, Div A, Title V, Subtitle E, § 555(a), (b), Title XL Subtitle H, § 1182(a)(2), 107 Stat. 1666, 1771; Feb. 10, 1996, P.L. 104-106, Div A, Title XV, § 1501(c)(16), 110 Stat. 499; Aug. 22, 1996, P.L. 104-193, Title III, Subtitle G, §§ 362(c), 363(c)(1)-(3), 110 Stat. 2246, 2249; Sept. 23, 1996, P.L. 104-201, Div A, Title VI, Subtitle D, § 636, 110 Stat. 2579; Nov. 18, 1997, P.L. 105-85, Div A, Title X, Subtitle G, § 1073(a)(24), (25), 111 Stat. 1901.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Explanatory notes:

The bracketed paragraph designator "(3)" has been inserted in subsec. (d)(1) in the reference to 42 U.S.C. 608(a)(4) as the paragraph probably intended by Congress.

Effective date of section:

Act Sept. 8, 1982, P.L. 97-252, Title X, § 1006, 96 Stat. 737, which appears as a note to this section, provided that this section is effective on the first day of the first month which begins more than one hundred and twenty days after enactment.

Amendments:

1984. Act Oct. 19, 1984, in subsec. (a)(2)(C), inserted "in the case of a division of property,"; in subsec. (b)(1)(C), inserted ", if possible,"; in subsec. (d), in para. (1), substituted "After effective service on the Secretary concerned of a court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired or retainer pay from a member to the spouse or a former spouse of the member, the Secretary shall make payments (subject to the limitations of this section) from the disposable retired or retainer pay of the member to the spouse or former spouse in an amount sufficient to satisfy the amount of child support and alimony set forth in the court order and, with respect to a division of property, in the amount of disposable retired or retainer pay specifically provided for in the court order." for "After effective service on the secretary concerned of a court order with respect to the payment of a portion of the retired or retainer pay of a member to the spouse or a former spouse of the member, the Secretary shall, subject to the limitations of this section, make payments to the spouse or former spouse in the amount of the disposable retired or retainer pay of the member specifically provided for in the court order.", in para. (5), substituted "child support or alimony or the payment of an amount of disposable retired or retainer pay as the result of the court's treatment of such pay under subsection (c) as property of the member and his spouse, the Secretary concerned shall pay (subject to the limitations of this section) from the disposable retired or retainer pay of the member to the spouse or former spouse of the member, any part" for "disposable retired or retainer pay, the Secretary concerned shall, subject to the limitations of this section, pay to the spouse or former spouse of the member, from the disposable retired or retainer pay of the member, any part"; and in subsec. (e), in para. (2), substituted ", the disposable retired or retainer pay of the member" for "from the disposable retired or retainer pay of a member, such pay", in para. (3)(A), in the introductory matter, deleted "from the disposable retired or retainer pay" following "former spouse", in cl. (i), substituted "from the member's disposable retired or retainer pay the least amount" for "the least amount of disposable retired or retainer pay", in cl. (ii)(I), deleted "of retired or retainer pay" following "largest amount", in para. (4)(A), deleted "the retired or retainer pay of following "month from", and substituted "satisfaction of such court orders and legal process from the retired or retainer pay of the member shall be" for "such court orders and legal process shall be satisfied", and in para. (5), deleted "of disposable retired or retainer pay" in two places following "payment of an amount", and substituted "disposable retired or retainer pay" for "such pay" following "which exceeds the amount of".

1986. Act Nov. 14, 1986, § 644(a) (applicable as provided by § 644(b) of such Act, which appears as a note to this section), as amended by Act April 21, 1987, § 3(3), (applicable as if included in Act Nov. 14, 1986 when enacted on 1 1/ 1 4/ 86, as provided by § 12(a) of Act April 21, 1987, which appears as 10 USCS5 776 note), in subsec. (a), in para. (4), in the introductory matter, deleted "(other than the retired pay of a member retired for disability under chapter 61 of this title)" following "member is entitled", and substituted subpara. (E) for one which read: "are deducted as Government life insurance premiums (not including amounts deducted for supplemental coverage); or".

1987. Act April 21, 1987, in subsec. (a)(4)(D), substituted "Internal Revenue Code of 1986" for "Internal Revenue Code of 1954".

Such Act further made a technical correction to the directory language of § 644(a) of Act Nov. 14, 1986, P.L. 99­661, which did not affect the text of this section.

1989. Act Nov. 29, 1989, in subsec. (a), in para. (4)(D), deleted "(26 U.S.C. 3402(i))" following "1986", and, in para. (5), inserted "entitled to retired pay under section 1331 of this title".

Such Act further, in subsec. (a), in the introductory matter of paras. (1)-(4), and in paras. (5) and (6), inserted "The term" and revised the first word in quotation marks in each para, so that the initial letter of such word is lower case.

1990, Act Nov. 5, 1990 deleted "or retainer" following "retired", wherever appearing, arid added the subsection headings in subsecs. (a)-(h).

Such Act further (applicable as provided by § 555(e)(1) of such Act, which appears as a note to this section), in subsec. (c)(1), added the sentence beginning "A court may not treat retired pay as property .. .".

Such Act further (applicable as provided by § 555(e)(2) of such Act, which appears as a note to this section), in subsec. (a)(4), in subpara. (A), substituted "for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay;" for the semicolon, substituted subpara. (B) for one which read: "(B) are required by law to be and are deducted from the retired or retainer pay of such member, including fines and forfeitures ordered by courts-martial, Federal employment taxes, and amounts waived in order to receive compensation under title 5 or title 38;", redesignated former subparas. (E) and (F) as subparas. (C) and (D), and deleted former subparas. (C) and (D), which read:

"(C) are properly withheld for Federal, State, or local income tax purposes, if the withholding of such amounts is authorized or required by law and to the extent such amounts withheld are not greater than would be authorized if such member claimed all dependents to which he was entitled;

"(D) are withheld under section 3402(i) of the Internal Revenue Code of 1954 (26 U.S.C. 3402(i)) if such member, presents evidence of a tax obligation which supports such withholding;";

and added para. (7); in subsec. (c)(2), added the sentence beginning "Payments by the Secretary concerned under subsection (d) ..."; and, in subsec. (e), in para. (1), substituted "payable under all court orders pursuant to subsection (c)" for "payable under subsection (d)", and, in para. (4)(B), substituted "the amount of the retired pay payable to such member that is considered under section 462 of the Social Security Act (42 U.S.0 662) to be remuneration for employment that is payable by the United States" for "the disposable retired or retainer pay payable to such member".

1991. Act Dec. 5, 1991 substituted the section heading for one which read: "§ 1408. Payment of retired pay in compliance with court orders".

1992. Act Oct. 23, 1992 (applicable as provided by § 653(c) of such Act, which appears as a note to this section) redesignated subsec. (h) as subsec. (i); and added new subsec. (h).

1993. Act Nov. 30, 1993 (applicable as provided by § 1182(h) of such Act, which appears as 10 USCS § /01 note), in subsecs. (b), in para. (1)(A), and in subsec. (1), in paras. (1) and (2), substituted "subsection (i)" for "subsection (h)"; and, in subsec. (h)(4)(B), inserted "of' after "of that termination".

Such Act further (effective as of 10/23/92 and applicable as if the provisions of subsec. (h)(10) added by such Act were included in the amendment made by § 653(a)(2) of Act Oct. 23, 1992, P.L. 102-484, as provided by § 555(c) of the 1993 Act, which appears as a note to this section), in subsec. (h), in para. (2)(A), inserted "or, for the Coast Guard when it is not operating as a service in the Navy, by the Secretary of Transportation", in para. (8), inserted "or, in the case of the Coast Guard, out of funds appropriated to the Department of Transportation for payment of retired pay for the Coast Guard", redesignated para. (10) as para. (11), and added a new para. (10).

1996. Act Feb. 10, 1996 (effective 12/1/94 and as if included as amendments made by Title XVI of Act Oct. 5, 1994 as originally enacted, as provided by § 1501(c) of such Act), in subsec. (a)(5), substituted "section 12731" for "section 1331"

Act Aug. 22, 1996 (effective 6 months after enactment, as provided by § 362(d) of such Act, which appears as 42 USCS § 659 note, but subject to § 395(b) and (c) of such Act, which appears as 42 USCS § 654 note), in subsec. (a), in para. (1), in subpara. (B), deleted "and" after the concluding semicolon, in subpara. (C), substituted "; and" for the concluding period, and added subpara. (D), in para. (2), in the introductory matter, inserted "or a support order, as defined in section 453(p) of the Social Security Act (42 U.S.C. 653(p)),", in subpara. (B), in cl. (i), substituted "(as defined in section 459(i)(2) of the Social Security Act (42 U.S.C. 659(i)(2)))" for "(as defined in section 462(b) of the Social Security Act (42 U.S.0 662(b)))" and, in cl. (ii), substituted "(as defined in section 459(i)(3) of the Social Security Act (42 U.S.C. 659(i)(3)))" for "(as defined in section 462(c) of the Social Security Act (42 U.S.C. 662(c)))"; in subsec. (d), in the heading, inserted "(or for benefit of)" and, in para. (1), inserted "(or for the benefit of such spouse or former spouse to a State disbursement unit established pursuant to section 454B of the Social Security Act or other public payee designated by a State, in accordance with part D of title IV of the Social Security Act, as directed by court order, or as otherwise directed in accordance with such part D)"; and added subsec. (j).

Such Act further (effective as provided by § 395(a)-(c) of such Act, which appears as 42 USCS § 654 note), in subsec. (d), in para. (1), inserted the sentence beginning "In the case of a spouse or former spouse . . .", and added para. (6); redesignated subsecs. (i) and (j) as subsecs. (j) and (k), and added subsec. (i).

Act Sept. 23, 1996, in subsec. (b)(1)(A), substituted "facsimile or electronic transmission or by mail" for "certified or registered mail, return receipt requested"; and, in subsec. (d), added para. [(7)] (6).

1997. Act Nov. 18, 1997 (applicable as provided by § 1073(i) of such Act, which appears as 10 USCS § 101 note), in subsec. (d), made technical corrections which required no change in text, redesignated para. [(7)] (6) as para. (7) and, in para. (7) as redesignated, in subpara. (A), substituted "out-of-State" for "out-of State"; and, in subsec. (g), made technical corrections which required no change in text.

Other provisions:

Repeal of provision for commissary and exchange privileges. Act Sept. 8, 1982, P.L. 97-252, Title X, § 1005, 96 Stat. 737, which formerly appeared as a note to this section, and which was effective on the first day of the first month which began more than 120 days after enactment on Sept. 8, 1982, as provided by § 1006(a) of such Act, which appears as 10 USCS § 1408 note, was repealed by Act July 19, 1988, P.L. 100-370, § 1(c)(5), 102 Stat. 841. It provided for rules and regulations to be prescribed for commissary and post exchange privileges for surviving spouses of retired uniformed services members. For similar provisions see 10 USCS § 1062.

Effective dates of Sept. 8, 1982 amendments; transitional provisions; applicability of subsec. (d). Act Sept 8, 1982, P.L. 97-252, Title X, § 1006, 96 Stat. 737; Sept. 24, 1983, P.L. 98-94, Title LX, Part D, § 941(c)(4), 97 Stat. 654; Oct. 19, 1984, P.L. 98-525, Title VI, Part E, § 645(b), 98 Stat. 2549, effective Jan. 1, 1985, as provided by § 645(d) in part of such Act, which appears as 10 USCS § 1072 note, provided:

"(a) The amendments made by this title [which, among other things, enacted this section; for full classification, consult USCS Tables volumes] shall take effect on the first day of the first month which begins more than one hundred and twenty days after the date of the enactment of this title.

"(b) Subsection (d) of section 1408 of title 10, United States Code, as added by section I002(a), shall apply only with respect to payments of retired or retainer pay for periods beginning on or after the effective date of this title, but without regard to the date of any court order. However, in the case of a court order that became final before June 26, 1981, payments under such subsection may only be made in accordance with such order as in effect on such date and without regard to any subsequent modifications.

"(c) The amendments made by section 1003 of this title [amending 10 USCS §§ 1447, 1448 and 1450] shall apply to persons who become eligible to participate in the Survivor Benefit Plan provided for in subchapter II of chapter 73 of title 10, United States Code [10 USCS §§ 1447 et seq.], before, on, or after the effective date of such amendments [subsec. (a) of this note].

"(d) The amendments made by section 1004 of this title [amending 10 USCS §§ 1072, 1076 and 1086] and the provisions of section 1005 of this title [note to this section] shall apply in the case of any former spouse of a member or former member of the uniformed services whether the final decree of divorce, dissolution, or annulment of the marriage of the former spouse and such member or former member is dated before, on, or after February 1, 1983.

"(e) For the purposes of this section--

"(1) the term 'court order' has the same meaning as provided in section 1408(a)(2) of title 10, United States Code (as added by section 1002 of this title);

"(2) the term 'former spouse' has the same meaning as provided in section 1408(a)(6) of such title (as added by section 1002 of this title); and

"(3) the term 'uniformed services' has the same meaning as provided in section 1072 of title 10, United States Code.".

Applicability of Oct. 19, 1984 amendments. Act Oct. 19, 1984, P.L. 98-525, Title VI, Part E, § 643(e), 98 Stat. 2548, provides: "The amendments made by this section [amending this section] shall apply with respect to court orders for which effective service (as described in section 1408(b)(1) of title 10, United States Code [subsec. (b)(1) of this section], as amended by subsection (b) of this section) is made on or after the date of the enactment of this Act.". Applicability of 1986 amendments. Act Nov. 14, 1986, P.L. 99-661, Div A, Title VI, Part D, § 644(b), 100 Stat. 3887, provides: "The amendments made by subsection (a) shall apply with respect to court orders issued after the date of the enactment of this Act.".

Applicability of 1990 amendments. Act Nov. 5, 1990, P.L. 101-510, Div A, Title V, Part E, § 555(e), 104 Stat. 1570; Dec. 5, 1991, P.L. 102-190, Div A, Title X, Part E, § 1062(a)(1), 105 Stat. 1475, provides:

"(I) The amendment made by subsection (a) [amending subset. (c)(1) of this section] shall apply with respect to judgments issued before, on, or after the date of the enactment of this Act. In the case of a judgment issued before the date of the enactment of this Act, such amendment shall not relieve any obligation, otherwise valid, to make a payment that is due to be made before the end of the two-year period beginning on the date of the enactment of this Act.

"(2) The amendments made by subsections (b), (c), and (d) [amending subsets. (a), (c)(2) and (e) of this section] apply with only respect to divorces, dissolutions of marriage, annulments, and legal separations that become effective after the end of the 90-day period beginning on the date of the enactment of this Act.".

Applicability of subset. (h). Act Oct. 23, 1992, P.L. 102-484, Div A, Title VI, Subtitle E, § 653(c), 106 Stat. 2429, provides: "No payments under subsection (h) of section 1408 of title 10, United States Code (as added by subsection (a)), shall accrue for periods before the date of the enactment of this Act.".

Study required. Act Oct. 23, 1992, P.L. 102-484, Div A, Title VI, Subtitle E, § 653(e), 106 Stat. 2429, provides:

"(1) The Secretary of Defense shall conduct a study in order to estimate--

"(A) the number of persons who will become eligible to receive payments under subsection (h) of section 1408 of title 10, United States Code (as added by subsection (a)), during each of fiscal years 1993 through 2000; and

"(B) for each of fiscal years 1993 through 2000, the number of members of the Armed Forces who, after having completed at least one, and less than 20, years of service in that fiscal year, will be approved in that fiscal year for separation from the Armed Forces as a result of having abused a spouse or dependent child.

"(2) The study shall include a thorough analysis of--

"(A) the effects, if any, of appeals and requests for clemency in the case of court-martial convictions on the entitlement to payments in accordance with subsection (h) of section 1408 of title 10, United States Code (as added by subsection (a));

"(B) the socio-economic effects on the dependents of members of the Armed Forces described in subsection (h)(2) of such section that result from terminations of the eligibility of such members to receive retired or retainer pay; and

"(C) the effects of separations of such members from the Armed Forces on the mission readiness of the units of assignment of such members when separated and on the Armed Forces in general.

"(3) Not later than one year after the date of the enactment of this Act, the Secretary shall submit to Congress a report on the results of the study.".

Effective date of 1993 amendment. Act Nov. 30, 1993, P.L. 103-160, Div A, Title V, Subtitle E, § 555(c), 107 Stat. 1666, provides: "The amendments made by this section shall take effect as of October 23, 1992, and shall apply as the provisions of the paragraph (10) of section 1408(h) of title 10, United States Code, added by such subsection were included in the amendment made by section 653(a)(2) of Public Law 102-484 (106 Stat. 2426).".

Termination of Trust Territory of the Pacific Islands. For termination of Trust Territory of the Pacific Islands, see note preceding 48 USCS §§ 1681.

Payroll deductions. Act Aug. 22, 1996, P.L. 104-193, Title III, Subtitle G, § 363(c)(4), 110 Stat. 2249, provides: "The Secretary of Defense shall begin payroll deductions within 30 days after receiving notice of withholding, or for the first pay period that begins after such 30-day period.".

Review of Federal former spouse protection laws. Act Nov. 18, 1997, P.L. 105-85, Div A, Title VI, Subtitle D, § 643, 111 Stat. 1799, provides:

"(a) Review required. The Secretary of Defense shall carry out a comprehensive review (including a comparison) of--

"(1)the protections, benefits, and treatment afforded under Federal law to members and former members of the uniformed services and former spouses of such persons; and

"(2)the protections, benefits, and treatment afforded under Federal law to employees and former employees of the Government and former spouses of such persons.

"(b) Military personnel matters to be reviewed. In the case of members and former members of the uniformed services and former spouses of such persons, the review under subsection (a) shall include the following:

"(1) All provisions of law (principally those originally enacted in the Uniformed Services Former Spouses'

Protection Act (title X of Public Law 97-252 [for full classification, consult USCS Tables volumes])) that--

"(A) establish, provide for the enforcement of, or otherwise protect interests of members and former members of the uniformed services and former spouses of such persons in retired or retainer pay of members and former members; or

"(B) provide other benefits for members and former members of the uniformed services and former spouses of such persons.

"(2) The experience of the uniformed services in administering those provisions of law, including the adequacy and effectiveness of the legal assistance provided by the Department of Defense in matters related to the Uniformed Services Former Spouses' Protection Act [for full classification, consult USCS Tables volumes].

"(3) The experience of members and former members of the uniformed services and former spouses of such persons in the administration of those provisions of law.

"(4) The experience of members and former members of the uniformed services and former spouses of such persons in the application of those provisions of law by State courts.

"(5) The history of State statutes and State court interpretations of the Uniformed Services Former Spouses' Protection Act [for full classification, consult USCS Tables volumes] and other provisions of Federal law described in paragraph (1)(A) and the extent to which those interpretations follow those laws.

"(c) Civilian personnel matters to be reviewed. In the case of former spouses of employees and former employees of the Government, the review under subsection (a) shall include the following:

"(1) AU provisions of law that-

"(A) establish, provide for the enforcement of, or otherwise protect interests of employees and former employees of the Government and former spouses of such persons in annuities of employees and former employees under Federal employees' retirement systems; or

"(B) provide other benefits for employees and former employees of the Government and former spouses of such persons.

"(2) The experience of the Office of Personnel Management and other agencies of the Government in administering those provisions of law.

"(3) The experience of employees and former employees of the Government and former spouses of such persons in the administration of those provisions of law.

"(4) The experience of employees and former employees of the Government and former spouses of such persons in the application of those provisions of law by State courts.

"(d) Sampling authorized. The Secretary may use sampling in carrying out the review under this section.

"(e) Report. Not later than September 30, 1999, the Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives a report on the results of the review under subsection (a). The report shall include any recommendations for legislation that the Secretary considers appropriate.".

NOTES:

CODE OF FEDERAL REGULATIONS

Office of the Secretary of Defense--Reserve Components Common Personnel Data System (RCCPDS), 32 CFR Part 63.

CROSS REFERENCES

This section is referred to in 10 USCS §§ 1059, 1078a, 1447, 1461, 1463; 5 USCS §§ 8332, 8411.

RESEARCH GUIDE

Federal Procedure:

3 Fed Proc L Ed, Armed Forces, Civil Disturbances, and National Defense § 5:58.

Am Jur:

6 Am Jur 2d, Attachment § 179.5.

9B Am Jur 2d, Bankruptcy § 3126.

9E Am Jur 2d, Bankruptcy § 3370.

15A Am Jur 2d, Community Property § 52.

24 Am Jur 2d, Divorce and Separation §§ 217, 539, 540, 543, 597, 599.

24A Am Jur 2d, Divorce and Separation § 782.

24 Am Jur 2d, Divorce and Separation § 909.

31 Am Jur 2d, Exemptions § 46.

Annotations:

Divorce: excessiveness or adequacy of combined property division and spousal support awards. 55 ALR4th 14. Divorce: excessiveness or adequacy of trial court's property award. 56 ALR4th 12.

Law Review Articles:

Bond; Landever. The Uniformed Services Former Spouses' Protection Act: a practitioner's guide, 10 Am J Fam L 145, Fall 1996.

Polchek. Recent property settlement issues for legal assistance attorneys. 1992 Army Law 4, December 1992. Cardos; Perry; Sinnott. The Uniformed Services Former Spouses Protection Act. 33 Federal Bar News and Journal 33, January 1986.

Reppy. The 1990 U.S.F.S.P.A. amendment: no bar to recognition of tenancy in common interests created by pre-McCarty [McCarty v. McCarty, 101 S. Ct. 2728 (1981)] divorces that fail to divide military retirement benefits. 29 Idaho L Rev 941, 199 2/ 1993.

Guilford. Exploring 'the labyrinth: current issues under the Uniformed Services Former Spouses' Protection Act. 132 Mil L Rev 43, Spring 1991.

Gilbert. A family law practitioner's road map to the Uniformed Services Former Spouses Protection Act. 32 Santa Clara L Rev 61, 1992.

Manashil. The Uniformed Services Former Spouses' Protection Act of 1982: Problems Resulting From its Application. 20 USFL Rev 83, Fall 1985.

INTERPRETIVE NOTES AND DECISIONS

I. IN GENERAL

1. Generally

2. Purpose

3. Constitutional issues

4. Construction

5. Application

6. Relationship to state law

7. Jurisdiction

8. Spousal notification requirement

9. Pay subject to apportionment and direct payment 10: --Pay excluded

11. 10-year marriage requirement

12. Miscellaneous

II. RETROACTIVITY

13. Generally

14. Relationship to state law

15. Validity of prior decisions/decrees

16. -Res judicata

17. Estoppel

I. IN GENERAL

1. Generally

District court lacked jurisdiction, under Rooker-Feldman doctrine, over naval retiree's claim that Uniformed Services Former Spouses' Protection Act (10 USCS § 1408) amounted to unconstitutional taking of his property by state court's award of plaintiff's retirement pay to his ex-spouse as alimony pursuant to Act; plaintiffs constitutional claim was inextricably intertwined with whether state court could award plaintiffs naval retirement pay to his ex-wife and federal district court holding in plaintiffs favor would effectively nullify state court's judgment. Powell v Powell (1996, CA 11 Ga) 80 F3d 464, 9 FLW Fed C 1015.

10 USCS § 1408 does not require division of military retired pay; it merely provides mechanism to enforce valid
state court order directing such division for retired pay received after 6/25/81. DOHA Case No. 99122104 (3/16/00).

2. Purpose

Federal Uniform Services Former Spouses' Protection Act (10 USCS § 1408) was not intended to expand subject-matter jurisdiction of federal courts, but rather merely empowered court that otherwise had jurisdiction to divide marital property. Steel v United States (1987, CA9 Cal) 813 F2d 1545.

Uniformed Services Former Spouses' Protection Act was intended to obliterate adverse effect of U. S. Supreme Court decision which held that federal law precludes state court from dividing military non-disability retirement pay pursuant to state law. Allen v Allen (1986, La App 3d Cir) 484 So 2d 269, cert den (1986, La) 488 So 2d 199 and cert den (1986) 479 US 850, 93 L Ed 2d 114, 107 S Ct 178.

Effect of 10 USCS § 1408 is to allow state court to apply state community property law regarding divisibility of multi-pensions as it existed on June 26, 1981 to all cases pending in trial court and on appeal. Steczo v Steczo (1983, App) 135 Ariz 199, 659 P2d 1344.

Purpose of 10 USCS § 1408(c)(I) was to overrule in its entirety United States Supreme Court decision in McCarty v McCarty, which held that under community property law military retirement pensions could not be divided between divorcing spouses. In re Marriage of Buikema (1983, 4th Dist) 139 Cal App 3d 689, 188 Ca! Rptr 856.

Purpose of 10 USCS § /408(c)(1) is to reverse effect of McCarty v McCarty (1981) 453 US 210, 69 L Ed 2d 589, 101 S Ct 2728, 2 EBC 1502, which holds that non-disability military retirement benefits are not divisible as community . property by state courts; apparent purpose of § 1408(c)(1) reference to June 25, 1981, is to place courts in same position they were in on June 26, 1981, date of McCarty decision. Neese v Neese (1984, Tex App Eastland) 669 SW2d 388.

10 USCS § 1408 effectively nullified Supreme Court's holding in McCarty Decision. In re Marriage of Smith (1983) 100 Wash 2d 319, 669 P2d 448.

3. Constitutional issues

Passage of Uniform Services Former Spouse's Protection Act (10 USCS § 1408(c)(1) (USFSPA) did not result in taking of former military personnel's property (portion of their military retired pay) in violation of Fifth Amendment to Constitution as Act merely removed federal pre-emption which precluded state courts from considering military retirement pay as marital property subject to division as part of divorce decree and there was no intent on government's part to take claimants' property; even assuming arguendo that property was taken from claimants, it was taken not for public use but for private use of claimants' ex-spouses. Fern v United States (1988) 15 Cl Ct 580, affd (1990, CA) 908 F2d 955, 12 EBC 1936.

Uniform Services Former Spouses Protection Act, which authorizes state courts to treat disposable retire pay as property solely of retiree or as property of retiree and spouse, does not affect taking of property requiring service member whose pay has been apportioned in community property states pursuant to divorce decree to be reimbursed by U.S. Government. Fern v United States (1990, CA) 908 Fld 955, 12 EBC 1936.

4. Construction

Statute does not grant state courts power to treat as property divisible upon divorce military retirement pay that retiree had waived pursuant to 38 USCS § 3105 in order to receive veterans' disability benefits; it cannot be read merely as garnishment statute designed not to pre-empt authority of state courts but solely to set out circumstances under which federal government will make direct payments of retirement pay to retiree's former spouse pursuant to court order because statute provides that court may treat disposable retired or retainer pay but not total retired pay as property of retiree and spouse, and term "disposable retired or retainer pay" is defined to exclude military retirement pay waived in order to receive veterans' disability benefits, and other subsections of statute impose substantive limits on state courts' power to divide military retirement pay. Mansell v Mansell (1989) 490 US 581, 104 L Ed 2d 675, 109 S Ct 2023, 10 EBC 2521.

Direct payment provision does not apply to amendment or modification of divorce decree that does not divide or address military retired pay and that became final before June 26, 1981. Carmody v Secretary of Navy (1989, CA4 Va) 886 F2d 678.

Action by former spouse of retired military officer for partition of officer's retirement pay is dismissed, where parties' marriage was dissolved by German court, because Uniformed Services Former Spouses Protection Act only allows courts to apply state divorce laws to military pensions, but does not expressly or impliedly grant court power to adjudicate any cause nor does it provide substantive rules for treatment of military pensions in divorce or domestic

17.12

relations contexts, so court lacks jurisdiction to adjudicate plaintiffs request to partition military retirement pay. Brown v Harms (1994, ED Va) 863 F Supp 278.

Under California law, Uniform Services Former Spouses Protection Act grants authority for state court to determine wife's community property interest in former husband's military retirement pension in action subsequent to divorce decree, since there was no final adjudication of that interest at time divorce decree became final in 1970. Bryant v Sullivan (1985, App) 148 Ariz 426, 715 P2d 282.

Former serviceman's wife seeking division of military retirement pay of husband in accord with § 1408 has community interest in such pay where military retirement pay was classified as community property under state law at time of divorce and after effective date of § 1408 which permits but does not require states to classify military retirement pay as marital property. Savoie v Savoie (1986, La App 5th Cir) 482 So 2d 23.

Rights to military retirement benefits accrue continuously throughout husband's period of service, and wife's entitlement to those benefits should be determined under law of state in which parties were domiciled for respective periods during which military retirement benefits accrued. Allen v Allen (1986, La App 3d Cir) 484 So 2d 269, cert den (1986, La) 488 So 2d 199 and cert den (1986) 479 US 850, 93 L Ed 2d 114, 107 S Ct 178.

Modification of decree of dissolution ordering Secretary of Air Force to directly pay retired serviceman's former wife 50 percent of military retirement pay is appropriate equitable response to circumstances and is permitted under § 1408 where serviceman failed to pay wife any support after dissolution. In re Marriage of Hadley (1986) 77 Or App 295, 713 P2d 39.

Order modifying decree of dissolution which required retired serviceman and former wife to certify to Secretary of Air Force as to validity of modification decree of dissolution should be eliminated since there are no conflicting court orders in case and § 1408 requiring certification is applicable only when Secretary of Air Force is served with conflicting court orders. In re Marriage of Hadley (1986) 77 Or App 295, 713 P2d 39.

Section 1048(c)(1) does not mandate that military retirement pension be shared by recipient and recipient's former spouse; it only authorizes division, and leaves to state courts decision regarding whether any allocation is to be made. In re Marriage of Habermehl (1985, 5th Dist) 135 111 App 3d 105, 89 171 Dec 939, 481 NE2c1 782.

Section 1408 does not require reinstatement of earlier judgments or division of military pay but only permits reopening of final judgments for reconsideration in light of its provisions. In re Marriage of Giroux (1985) 41 Wash App 315, 704 P2d 160.

10 USCS § 1408 does not signify congressional intent to pre-empt state law and disallow disposition of military disability retirement paid by state courts in accordance with state law, in situation where (1) retirement occurred before dissolution of marriage and at time when military spouse was eligible for both longevity and disability retirement and could have elected to receive longevity retirement benefits under both federal and state law, and (2) nonmilitary spouse would have been entitled to a community property share of longevity retirement pension for which husband was eligible had he elected to receive longevity retirement benefits; in such situation, military spouse cannot destroy other spouse's federal statutory right and concomitant state law right by simply accepting disability retirement and opting not to elect longevity retirement. In re Marriage of Mastropaolo (1985, 4th Dist) 166 Cal App 3d 953, 213 Cal Rptr 26, cert den (1986) 475 US 1011, 89 L Ed 2d 301, 106 S Ct 1185.

5. Application

Division of value by state Family Court of right of United States Public Health veterinarian to retire and receive benefits does not violate 10 USCS § 1408. Wallace v Wallace (1984, App) 5 Hawaii App 55, 677 P2d 966.

Trial court did not err in awarding portion of husband's military pension to wife in legal separation proceeding in view of enactment of 10 USCS § 1408. Coates v Coates (1983, Mo App) 650 SW2d 307.

Husbands military non-disability retirement benefits could be divided in divorce action where trial court still had control over divorce judgment. Voronin v Voronin (1983, Tex App Austin) 662 SW2d 102.

Trial court erred in not considering husband's military retirement benefits at time of division of community estate between divorcing husband and wife, notwithstanding at time of divorce decree, Congress had not enacted 10 USCS § 1408. Gordon v Gordon (1983, Tex App Corpus Christi) 659 SW2d 475 (superseded by statute on other grounds as stated in Southern v Glenn (1984, Tex App San Antonio) 677 SW2d 576).

6. Relationship to state law

Section 1408 does not pre-empt New Mexico community property law which treats military disability retirement benefits as community property. Austin v Austin (1985) 103 NM 457, 709 P2d 179.

17.13

Trial court erred in declaring military pension to be husband's separate property, notwithstanding that Uniformed Services Former Spouse's Protection Act (10 USCS § 1408) gives each state power to deal with military pensions as it sees fit. In re Marriage of Sarles (1983, 4th Dist) 143 Cal App 3d 24, 191 Cal Rptr 514.

Former Spouses' Protection Act (10 USCS § 1408) allowing courts to consider retirement pay in fashioning divorce settlements permits but does not command state courts to consider military retirement benefit as marital property; Act provides power to each state to deal with military pensions in manner in which it had previously treated them or chooses to treat them in future. Koenes v Koenes (1985, Ind App) 478 NE2d 1241 (superseded by statute on other grounds as stated in In re Marriage of Bickel (1989, Ind App) 533 NE2d 593); In re Marriage of Battles (1991, Ind) 564 NE2d 565.

Section 1408, which is permissive, cannot create procedural mechanism to reopen final state court judgments; divorce decree entered prior to enactment of § 1408 awarding all military retirement benefits to husband was final judgment which, not being void, could not be collaterally attacked in partition suit filed subsequent to enactment of § 1408. Allison v Allison (1985, Tex App Fort Worth) 690 SW2d 340.

Uniformed Services Former Spouses' Protection Act (10 USCS § 1408) does not preclude state courts from considering former spouse's military disability benefits received in lieu of waived retirement pay when making equitable division of marital assets. Clauson v Clauson (1992, Alaska) 831 P2d 1257, 15 EBC 1913.

In light of enactment of § 1408, marital property interest may be recognized in retirement benefits from military pension in accordance with Illinois case law prior to United States Supreme Court's decision in McCarty v McCarty (1981) 453 US 210, 101 S Cr 2728, 69 L Ed 2d 589. In re Marriage of Dooley (1985, 2d Dist) 137 Ill App 3d 401. 92 Ill Dec 163, 484 NE2d 894.

Although failure to include within 10 USCS § 1408(c)(1) disability payments received in accordance with waiver executed pursuant to 28 USCS § 3105 arguably leads to conclusion that Congress' intent was to preclude states from recognizing community interest in such payments, neither 38 USCS § 3101(a) prohibition against assignments of Veterans' benefits nor any other federal law directly or positively precludes application of Louisiana's community property law to disability payments received pursuant to 38 USCS § 3105 election. Campbell v Campbell (1985, La App 2d Cir) 474 So 2d 1339, cert den (1985, La) 478 So 2d 148.

7. Jurisdiction

Court otherwise having jurisdiction of parties is not allowed to invoke powers of Federal Uniform Services Former Spouses' Protection Act (10 USCS § 1408) unless personal jurisdiction has been acquired by domicile or consent or residence other than by military assignment; careful reading of 10 USCS § 1408(c)(1) reveals that provision is limitation on subject-matter, rather than personal jurisdiction. Steel v United States (/987, C49 Cal) 813 F2d /545.

Nevada District Court has jurisdiction over former military wife's suit for partition of ex-husbands military retirement benefits, even though ex-husband, at time of suit, did not reside in, was not domiciled in, and had not consented to jurisdiction in Nevada, because 10 USCS§ 1408(c) is limitation on subject matter rather than personal jurisdiction, and court has personal jurisdiction under Nevada law based on ex-husbands consent to jurisdiction for .purposes of 1974 divorce decree. Lewis v Lewis (1988, DC Nev) 695 F Supp 1089.

Exception to court's subject matter jurisdiction overruled in former wife's post divorce petition to partition husband's military retirement pay, where military spouse gave implied consent to state court's jurisdiction by making general appearance waiving all jurisdictional objections under state law when spouse answered divorce petition, this waiver gave state jurisdiction over all matters incidental to dissolution of marriage; § 1408 does not require express consent to court's jurisdiction. Allen v Allen (1986, La App 3d Cir) 484 So 2d 269, cert den (1986, La) 488 So 2d 199 and cert den (1986) 479 US 850, 93 L Ed 2d 114, 107 S Ct 178.

Exception to personal jurisdiction in post-divorce action for partition of community property including former husband's military retirement pay overruled since husband who domiciled in Mississippi and formerly resided in Louisiana with wife submitted to jurisdiction over his person in Louisiana by answering divorce petition filed in Louisiana such that it was within state power to bind him by every subsequent order in the cause. Allen v Allen (1986, La App 3d Cir) 484 So 2d 269, cert den (1986, La) 488 So 2d 199 and cert den (1986) 479 US 850, 93 L Ed 2d 114, 107 S Ct /78.

Under Uniform Services Former Spouses' Protection Act, Texas court did not have personal jurisdiction over former husband in action to partition of husband's military retirement pay where husband never resided or was domiciled in Texas, and where husband never consented to personal jurisdiction in Texas for partition of military retirement pay notwithstanding that husband was petitioner in Texas divorce suit. Kovacich v Kovacich (1986, Tex App San Antonio)

705 SW2d 281.

17.14

Where at time of Texas divorce action husband was serviceman stationed in Germany, and where husband initially filed special appearance contesting jurisdiction but subsequently entered general appearance by allowing case to be tried, husband consented to jurisdiction and satisfied requirements of § 1408(c)(4). Seeley v Seeley (1985, Tex App Austin) 690 SW2d 626.

Section 1408(c)(4) setting forth jurisdictional criteria applicable to courts' treatment of disposable retired or retainer pay in manner provided by § 1408(c)(1) is limitation upon court's exercise of jurisdiction to dispose of military retirement pay; Court of Appeals must apply such jurisdictional provisions rather than more expansive state law provisions applied by trial court. Seeley v Seeley (1985, Tex App Austin) 690 SW2d 626.

8. Spousal notification requirement

Requirement in predecessor to 10 USCS § 1448(a) that spouse be notified if person eligible to participate in plan elects not to participate applies only to service member who is automatically enrolled in Survivor Benefit Plan because he retires on or after effective date of § 1448; requirement does not apply with respect to service member who was already entitled to retired or retainer pay and who was permitted by Congress but declined to elect to participate in Plan. Passaro v United States (1985, CA) 774 F2d 456, cert den (1986) 476 US 1114, 90 L Ed 2d 653, 106 S Ct 1969.

9. Pay subject to apportionment and direct payment

Secretary of Army is directed to distribute portion of ex-husband's military retirement pay to divorced wife, where discrepancy over validity of divorce decree granting wife one-third of benefits was resolved when state appellate court denied husband's post-trial motion for relief, because wife has complied with requirements and Secretary has duty to make payments under 10 USCS § 1408(d)(1). Andrean v Secretary of the United States Army (1993, DC Kan) 840 F Supp 1414.

Former spouse's partition action is forbidden by 10 USCS § 1408(c)(1), where pre-1981 final divorce decree neither treated nor reserved jurisdiction to treat any amount of military retired pay as community property, even though decree did not include court-ordered, court-ratified, or court-approved property settlement, because parenthetical clause in § 1408(c)(1) expands or illustrates preceding list to include property settlements incident to such decrees but does not limit preceding words. Delrie v Harris (1997, WD La) 962 F Supp 931.

If retired military personnel requests additional income tax withholdings beyond regularly required withholdings in computation of net or "disposable" military retired pay subject to apportionment, applicant is required to present factual evidence demonstrating existence of tax burden justifying additional withholding; no additional tax withholding may be allowed in computation of disposable retired pay in case of retired officer who gives only rough estimate or opinion of projected tax obligations and presents no financial record as evidence in support of estimate; although Comptroller General has jurisdiction to resolve questions relating to computation of net military ''disposable retired or retainer pay" under Uniform Services -Former Spouses' Protection Act (10 USCS § 1408), revenue rulings concerning withholding of federal taxes from income are reserved by statute for determination primarily by the Internal Revenue Service. (1984) 63 Op Comp Gen 323.

No error in award to wife of percentage of former husband's military retirement benefits notwithstanding allegation that said retirement benefits accrued in Maryland which was not then community property state, since husband failed to offer convincing proof of substantive law of Maryland on issue of distribution of military pay and where it was not clear that said benefits accrued in Maryland, such that court presumed Maryland and Louisiana law were similar thus permitting distribution to former spouse of military retirement pay. Allen v Allen (1986, La App 3d Cir) 484 So 2d 269, cert den (1986, La) 488 So 2d 199 and cert den (1986) 479 US 850, 93 L Ed 2d 114, 107 S Ct 178.

Trial court did not abuse discretion in determining that husband's military retirement pay was available for division in divorce proceeding. Chase v Chase (1983, Alaska) 662 P2d 944.

Section 1408(a)(4)(C)(1) does not preclude California court from awarding ex-spouse more than community property interest in retiree's "disposable" retirement pay. Casas v Thompson (1986) 42 Cal 3d 131, 228 Cal Rptr 33, 720 P2d 921, cert den (1986) 479 US 1012, 93 L Ed 2d 713, 107 S Ct 659.

Military retirement is classified in accordance with law of jurisdiction for purposes of division following dissolution of marriage; military retirement pay is classified as community or separate property according to whether act of service upon which benefits were based took place prior to marriage or after marriage. Lang v Lang (1985, App) 109 Idaho 802, 711 P2d 1322.

Fact that § 1408(c)(1) was made retroactive to June 25, 1981, does not warrant modification of judgment for maintenance and division of marital and nonmarital property rendered in February, 1982, notwithstanding that judgment did not divide husband's retirement pension, where parties and trial court gave full recognition to payments generated by pension in making division of marital property and where parties agreed to non-modification provision pursuant to Illinois law. In re Marriage of Habermehl (1985, 5th Dist) 135 Ill App 3d 105, 89 111 Dec 939, 481 NE2d 782.

Uniformed Services Former Spouses' Protection Act (10 USCS § 1408) grants states authority to treat all disposable retired pay as marital property, but limits direct government payment to former spouses to 50 percent of disposable retired pay; where trial court intends to give half of gross pension to spouse, court must, in addition to ordering direct government payments, order retired servicemen to make monthly supplemental payments. Deliduka v Deliduka (1984, Minn App) 347 NW2d 52.

Under 10 USCS § I408(d)(2), wife is entitled to portion of husband's non-disability military retirement pay from June 25, 1981. Cameron v Cameron (1982, Tex) 641 SW2d 210 (superseded by statute on other grounds as stated in Southern v Glenn (1984, Tex App San Antonio) 677 SW2d 576) and (superseded by statute on other grounds as stated in Harrell v Harrell (1984, Tex App Corpus Christi) 684 SW2d 118).

Decree of dissolution awarding wife less than one-half of husband's military retirement pay is effective for pay periods beginning after effective date of 10 USCS § 1408, regardless of date of previous dissolution order. In re Marriage of Wood (1983) 34 Wash App 892, 664 P2d 1297.

10. Pay excluded

Retirement pay owed to United States is excluded from definition of disposable retired or retainer pay and thus is not subject to state's marital property law so that withheld portion of husband's retirement pay in satisfaction of unpaid tax assessments was not subject to wife's community property interests. Alford v United States (1991, CA9 Idaho) 934 F2d 229, 91 CDOS 4026, 91 Daily Journal DAR 6329, 92-1 USTC P 50229, 67 AFTR 2d 91-1135, magistrate's recommendation (1992, DC Idaho) 71 AFTR 2d 93-718 and (criticized in Lyle v Commodity Credit Corp. (1996, CA10 Kan) 97-1 USTC P 50119, 78 AFTR 2d 96-7623).

Military separation pay received under § 1174, a one-time payment received upon involuntary discharge from service to financially assist transition to private employment, is not embraced within meaning of disposable retirement or retainer pay under § 1408, which permits states to treat as separate property or property of serviceman and his spouse, where separation pay is a one-time payment as opposed to compensation for past services and where § 1408 does not mention separation pay in its definition of retired or retainer pay, accordingly if service member is not married at time of involuntary discharge, separation pay is separate property unless service member re-enlists and becomes eligible for military longevity retirement benefits. In re Marriage of Kuzmiak (1986, 2nd Dist) 176 Cal App 3d 1152, 222 Cal Rptr 644, cert den (1986) 479 US 885, 93 L Ed 2d 252, 107 S Ct 276.

11. 10-year marriage requirement

Federal Uniformed Services Former Spouse's Protection Act (10 USCS § 1408) is not limited in its application to spouses married to military retiree for 10 years or more during which time retiree served at least 10 years of service; § 1408(d)(2) bar to payments if spouse or former spouse was not married to member for a period of 10 years or more during which member performed at least 10 years of service applies only where direct payments are made by Secretary to Former Spouse pursuant to § 1408(c)(1) in response to court order. Le Vine v Spickelmier (1985) 109 Idaho 341, 707 P2d 452.

10 USCS § 1408 does not require that 10-year threshold be met by consecutive years of marriage, but may be obtained by tacking on credit from 2 marriages to same spouse. Anderson v Anderson (1984, Greene Co) 13 Ohio App 3d 194, 13 Ohio BR 242, 468 NE2d 784.

10 USCS § 1403(d) does not impose 10-year marriage requirement as prerequisite to division of military retirement benefits and receipt thereof by former spouse but merely provides such requirement as prerequisite to direct payments to former spouse by Secretary. Oxelgren v Oxelgren (1984, Tex App Fort Worth) 670 SW2d 411.

12. Miscellaneous

In view of explicit provision in subsection (0(1) it is patently clear that U.S. has not waived its immunity to permit claim challenging USFSPA. Goad v United States (1991) 24 Cl Ct 777, app dismd without op (1992, CA) 976 F2d 747, cert den (1992) 506 US 1034, 121 L Ed 2d 687, 113 S Ct 814.

Provision prohibiting payments pursuant to court order that became final before June 26, 1981, did not apply to 1985 bankruptcy court order authorizing U.S. Army Finance and Accounting Center to begin making direct payments of Portion of plaintiffs retirement pay to plaintiffs ex-wife. Chandler v United States (1994) 31 Fed Cl 106, affd without op (1994, CA FC) 39 F3d 1196, reported in full (1994, CA FC) 1994 US App LEXIS 28130 and mand den, motion den sub nom In re Chandler (1995, CA FC) 1995 US App LEXIS 11894.

Authority to issue authoritative revenue rulings on federal income tax withholding rests with IRS; however, Comptroller General may render decision regarding individual's tax withholdings to extent that amounts withheld affect calculation of individual's disposable retired pay as that term is defined in 10 USCS§ 1408 Colonel Robert M. Krone, USAF (Retired)--Federal Income Tax Withholding from Military Retired Pay for Former Spouse Protection Act Purposes (8/6/96) Comp. Gen. Dec. No. B-271052.

10 USCS § 1408 does not impose duty on federal agencies to continually "police" former spouse's entitlement to service member's retired pay. DOHA Case No. 99122104 (3/16/00).

10 USCS § 1408(f)(1) means that United States has not waived its immunity from suit, and that United States and its officers and employees are not liable when they comply with statute. DOHA Case No. 99 i 22104 (3/16/00).

II. RETROACTIVITY

13. Generally

Because there is no property or contractual interest in any anticipated level of military retired pay, and right to retired pay is within exclusive control of Congress and is always subject to change, retroactive application of Uniform Services Former Spouse's Protection Act (10 USCS § 1408(c)(1)) did not constitute unjustified impairment of implied contractual arrangement between retired members of Armed Forces and government. Fern v United States (1988) 15 Cl Ct 580, affd (1990, CA) 908 F2d 955, 12 EBC 1936.

State judgments rendered before McCarty decision are not void ab initio and Texas divorce decree awarding wife percentage of husband's Army pension benefits upon his retirement may not be collaterally attacked; nor is res judicata effect of unappealed divorce decree overcome by retroactive application of McCarty decision. Brown v Robertson (1985, WD Tex) 606 F Supp 494.

Decision in McCarty v McCarty (1981) 453 US 210, 101 S Ct 2728, 69 L Ed 2d 589, that wife has no property interest in her husband's military retirement pay is not to be applied retroactively to any community property settlement agreement, be it incorporated into judgment or not; to apply McCarty retroactively would violate clear intent of Congress, in passing § 1408, to completely obliterate effect of McCarty decision. Stevens v Stevens (1985, La App 2d Cir) 476 So 2d 883, cert den (1985, La) 478 So 2d 908.

Former serviceman's wife was entitled to community share of military retirement pay as of retroactive date specified in § 1408, and not retirement date of 8/1/80 since there was no prior adjudication of retirement pay prior to retroactive date. Savoie v Savoie (1986, La App 5th Cir) 482 So 2d 23.

Wife not entitled to equitable distribution of former husband's military pension where wife entered into valid separation agreement which contained no reference to pension but contained general release or waiver provision of all rights of claims to property, notwithstanding that at time of agreement state law precluded consideration of military pensions as marital property and that subsequent to date of agreement § 1408 was enacted with limited retroactive application permitting but not requiring state to consider pensions as marital property and that state law was

subsequently amended to include military pensions as marital property since state law as amended was effective prospectively. Morris v Morris (1986) 79 NC App 386, 339 SE2d 424, review den (1986) 316 NC 733, 345 SE2d 390

Use of date on which United States Supreme Court decided McCarty Case as reference in 10 USCS § 1408(0(1) evidences legislative intent that law relative to community property treatment of military retirement pensions be as though McCarty did not exist, rendering moot any argument as to retroactive application of McCarty nile. In re Marriage of Frederick (1983, 5th Dist) 141 Cal App 3d 876, 190 Cal Rptr 588.

10 USCS § 1408 is retroactive to date of United States Supreme Court McCarty decision and applicable to all cases not final as of its effective date. In re Marriage of Hopkins (1983, 2nd Dist) 142 Cal App 3d 350, 191 Cal Rptr 70.

Decision in McCarty v McCarty (1981) 453 US 210, 101 S Ct 2728, 69 L Ed 2d 589, that wife has no property interest in her husband's military retirement pay is not to be applied retroactively to any community property settlement agreement, be it incorporated into judgment or not; to apply McCarty retroactively would violate clear intent of Congress, in passing § 1408, to completely obliterate effect of McCarty decision. Stevens v Stevens (1985, La App 2d Cir) 476 So 2(1883, cert den (1985, La) 478 So 2d 908.

Uniformed Services Former Spouse Protection Act (10 USCS § 1408) does not compel opening of final decree disposing of marital property. Bishir v Bishir (1985, Ky) 698 SW2d 823.

McCarty v McCarty (1981) 453 US 210, 101 S Ct 2728, 69 L Ed 2d 589, prohibiting division of military retirement benefits upon divorce, and 10 USCS § 1408, which in effect overruled McCarty but expressly exempted from division

disability retirement benefits under 10 USCS § 1201, do not apply retroactively to divorce decrees which became final prior to McCarty decision. Patrick v Patrick (1985, Tex App Fort Worth) 693 SW2d 52.

10 USCS § 1408 may be applied retroactively since it permits state courts to remedy harsh result to former spouses and, as remedial statute, may be retroactively applied since it cures defects or furthers remedy. Thorpe v Thorpe (1985, App) 123 Wis 2d 424, 367 NW2d 233.

14. Relationship to state law

Whatever limitations § 1408 may have concerning dissolution of military pay, § 1408 has no bearing on determining arrears for community property obligations decreed in judgments long final before effective date of Federal Uniform Services Former Spouses' Protection Act. In re Marriage of Stier (1986, 4th Dist) 178 Cal App 3d 42, 223 Cal Rptr 599.

Retroactive provisions of Federal Uniformed Services Former Spouses' Protection Act does not pre-empt act of state legislature which provides procedure for reopening community property settlements, judgments or decrees that become final prior to effective date of FUSFSPA and permit modification of community property division to include division of military retirement benefits where act of state legislature does not attempt to override limited retroactivity of FUSFSPA or to expand upon it; Federal Uniform Services Former Spouse' Protection Act, standing alone, does not have retroactive application sufficient to allow reopening of final divorce judgments which became effective before effective date of FUSFSPA. In re Marriage of Potter (1986, 5th Dist) 179 Cal App 3d 73, 224 Cal Rptr 312, cent den and app dismd (1987) 479 US 1072, 94 L Ed 2d 124, 107 S Ct 1262.

15. Validity of prior decisions/decrees

Former wife's action against Defense Finance and Accounting Service, seeking direct payment of her share of her former husband's military retirement pay as provided in state-court judgments, is dismissed, because final decree of divorce was issued prior to June 25, 1981, and because subsequent state-court judgments awarding wife portion of military retirement benefits were not in accord with mandate of 10 USCS § 1408(0(1) and of state law. Kemp v United States Dept of Defense (1994, WD La) 857 F Supp 32.

Passage of Uniform Services Former Spouses' Protection Act which permits but does not require state to consider retirement benefits as marital property and provides new remedies for collection of support does not constitute sufficient change in circumstances with respect to method and mode of support payment to warrant modification of decree of dissolution where retired serviceman's and former wife had stipulated amount and duration of spousal support before effective date of § 1408 and where serviceman's ability to pay was unaffected by § 1408 since his pension was considered in computation of support payments. In re Marriage of Hadley (1986) 77 Or App 295, 713 P2d 39.

Fact that § 1408 is effective February I, 1983 does not bar action by former wife, divorced from serviceman in 1966, for community interest in serviceman's military retirement pension, where former wife does not seek to modify or reopen 1966 judgment, and where her action is independent one to divide asset which was not before divorce court in 1966 and was not altered by divorce decree. Casas v Thompson (1986) 42 Cal 3d 131, 228 Cal Rptr 33, 720 P2d 921, cen den (1986) 479 US 1012, 93 L Ed 2d 713, 107 S CI 659.

Family court decision rendered on basis of Supreme Court's McCarty decision was properly reopened to apply state laws as they existed prior to McCarty. Smith v Smith (1983, Del Fam Ct) 458 Alti 711, 1983 Del Fam Ct LEXIS 41.

Congress intended § 1408(c)(1) to be applied retroactively to divorces which occurred between US Supreme Court's decision in McCarty v McCarty (1981) 69 L Ed 2d 589, holding that military pension could not be divided between spouses by state court, and effective date of § 1408(c)(1), although Missouri law would not allow final divorce decree to be reopened to address military pension question. In re Marriage of Quintard (1985, Mo App) 691 SW2d 950.

Divorced wife of military service member is entitled to benefits of 10 USCS § 1408, notwithstanding it became effective one month after date of final divorce. Walentowski v Walentowski (1983) 100 NM 484, 672 P2d 657.

Retroactive application of § 1408 so as to give former spouse relief from amended decree, entered in response to McCarty v McCarty (1981) 453 US 210. 101 S Ct 2728, 69 L Ed 2d 589, taking from former wife previously-awarded one-half community interest in former husband's military retirement pay does not deprive husband of vested right without due process of law. In re Marriage of Giroux (1985) 41 Wash App 315, 704 P2d 160.

16. Res judicata

Res judicata did not bar wife seeking recovery of percentage of former husband's disposable military retirement pay because of previous action denying entitlement to retirement pay based in part on Supreme Court decision holding

military benefits as personal not marital property, since subsequent enactment of § 1408 created new fact, a change in Iaw, and new cause of action. Powell v Powell (1985, Tex App Waco) 703 SW2d 434, app dismd (1986) 476 US 1180, 91 L Ed 2d 541, 106 S Ct 2911, reh den (1986) 478 US 1031, 92 L Ed 2d 767, 107 S Ct 11 and (criticized in Trahan v Trahan (1995, Tex App Austin) 894 SW2d 113).

17. Estoppel

Although doctrines of res judicata and collateral estoppel do not bar spouse from recovering his or her community interest invested in matured military pension benefits omitted from petition and later judgment of dissolution of marriage, retroactive enforcement of such rights is subject to military retiree's rights to raise defenses of equitable estoppel and ]aches; in such cases, trial court must apply equitable principles to prevent unfairness to spouse who may have placed substantial reliance on judgment. In re Marriage of Chambers (1985, 4th Dist) 174 Cal App 3d 1079, 220 Cal Rptr 504.