Baltimore County Family Law Attorney Blog

There are distinct differences between civilian and military divorces, particularly when it comes to dealing with the division of retirement benefits. With respect to the division of assets in a divorce proceeding, the US Supreme Court issued a ruling in 1981 that state courts were not allowed to divide military retired pay; however, the law changed after Congress passed the Uniformed Services Former Spouses' Protection Act (USFSPA) the following year. 

Under the Act, state courts are allowed to divide retired pay in certain instances. But as your Baltimore and Towson divorce lawyer will tell you, the division of military retired pay with ex-spouses is not automatic, and the amount that a former spouse may receive is entirely based on state law.

What Is Required For A State Court To Divide Military Retired Pay?

Certain criteria must be met in order for a state court to divide military retired pay. First of all, the court has to have jurisdiction over the individual who is in the military, and the court order that is issued must clearly state so. Additionally, in order to determine the eligibility of an ex-spouse, the court will use the "10/10 Rule," which calls for the servicemember to have at least 10 "creditable retirement military service years" and he or she must have been married to the ex-spouse for at least 10 creditable retirement military service years.

Also, the state court must, in its final court order, award the relevant part of retired pay as property. Your Baltimore and Towson divorce lawyer knows that the final court order can be either a dissolution of marriage, legal separation, annulment, court-ordered property settlement or a divorce decree. Also, the award must be specified as either a fixed dollar amount or a percentage of the servicemenber's disposable retired pay. In the case of a fixed dollar amount, the ex-spouse will not be able to receive any of the servicemember's retired pay cost of living adjustments (COLAs); but if the award is based on a percentage of the retired pay, the recipient's award will increase based on COLA.

Having Trouble Enforcing A State Court Award Under USFSPA? Let A Divorce Lawyer Help

Any ex-spouse who is interested in having his or her state court award enforced can apply to do so by submitting the appropriate forms, along with copies of the final court order that details the award, and the marriage certificate, if the marriage date is not stated in the order. It should be noted that, while retired pay is marital property that is subject to distribution, any disability benefits that the servicemember may be receiving is not.

Call (410) 321-4994 For a Free Consultation 

Call The Law Offices of Amar S. Weisman at (410) 321-4994 to schedule a Free Consultation. The Purpose of the consultation is to determine whether you want to retain this law firm as your Baltimore County & Harford County Family Lawyer. If you do wish to proceed, then you must pay a retainer. See Our Policy on Fees and Costs. The family firm is located next to The Circuit Court for Baltimore County, at 1018 Dulaney Valley Road, Towson, MD 21204.