A state court has the right to divide a federal military pension because the federal government passed a law allowing states to do so. That law is called “The Uniformed Services Former Spouses Protection Act (USFSPA). The USFSPA set specific parameters on what the state courts can actually do. The Act creates a coverture fraction to determine the spousal share to the retirement. The spousal share is limited to the disposable retirement pay. The Court is limited to awarding no more than 50% of the members disposable retired pay (gross retired pay less authorized deductions).
Disposable Retired Pay is determined:
All percentage awards are figured using a member’s disposable retired pay, which is a member’s gross retired pay less authorized deductions. The authorized deductions vary based on the date of the parties’ divorce. The principal deductions now include retired pay waived to receive VA disability compensation, disability retired pay, and Survivor Benefit Plan (SBP) premiums where the former spouse is elected as the former spouse beneficiary. Since the United States Supreme Court has ruled that Congress authorized the division of only disposable retired pay, not gross retired pay, the regulation provides that all percentage awards are to be construed as a percentage of disposable retired pay. 21 DODFMR, Vol. 7B, Paragraph 2906016. D.
Therefore the state court does not have the authority to award anything more than 50% of the disposable retired pay. This means the court cannot make the military member pay for the SBP out of their share of the retirement . If she did so, they would be violating the jurisdiction granted to the state court by the federal government and subject to being reversed on appeal
If you are a military member, military spouse, or just need help with issues of military divorce, please give me a call at 850-432-3333
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