1. My spouse is serving in the Armed Forces, stationed in another country. Can I still file for divorce?
Yes, you can file for divorce, regardless of where your spouse is. Contact our office our office at 501-296-9999 and ask us about filing papers to start the divorce action.
2. What gives a state court the power to treat military retired pay as marital property to be divided in a divorce?
In 1982, Congress passed a law, the Uniformed Services Former Spouses’ Protection Act (USFSPA), that permits state courts to treat military retired pay as property. The law was Public Law 97-252, and the portion dealing with the division is codified at Title 10 of the United States Code, Section 1408.
3. Does that federal law require an Arkansas court to divide military retired pay?
No. It only permitted the state courts to do so, and, in Arkansas, it does.
4. Does the USFSPA dictate how the division of retired pay will be computed?
No. This is left to state courts to determine the percentage awarded to the spouse.
5. Then what does the Act cover?
In overly simplistic terms, the Act specifies the limits placed on state courts and outlines how an application for direct payments will be processed.
6. How do courts determine how to divide military retirement?
In Arkansas, vested military retirement is divided, or not divided, by the court using the same criteria used in dividing non-military retirement. Retirement benefits acquired and vested during a marriage are generally divided equally, unless the judge finds some other division to be more fair.
7. Are there limits of forum shopping by the spouse?
Yes, the USFSPA has special jurisdictional requirements that must be met before a court has the power to treat retired pay as property. (This requirement is not present when the application made for an award of child support or spousal maintenance.
The Act states in section 1408(c)(4):
“A court may not treat the disposable retired pay of a member in the manner described (above) 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.”
This provision is one of the protection for the military retiree, but some attorneys may fail to consider this provision in planning strategy for your case even though it is very important that the attorney representing either party fully consider the implications of this rule.
8. Does the USFSPA state when a child support obligation terminates?
No. Once again, it is the language in the order or state law that controls. Your attorney should tell you when the obligation is to terminate so that you can plan your financial affairs.
Please feel free to contact Tripcony May at 501-296-9999 to schedule your free consultation today.
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