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Divorce and the Military
One of the least understood areas of law that New York matrimonial lawyers may encounter is the equitable distribution of military benefits. This is largely due to the relatively small number of military personnel who have traditionally resided in New York, the even smaller number of military personnel who divorce here, the paucity of the decisions dealing with them, and the lack of sufficient interest to spark Continuing Legal Education providers in this state to devote attention to the subject. Still, there are more than a few military personnel in New York, so any attorney may one day find him/herself having to decipher the intricacies of federal military retirement and disability laws on behalf of a client. Therefore, an understanding of each of the military benefits that can be distributed upon divorce and the circumstances under which they can be distributed may one day prove useful.
Which Law Is Applied?
In McCarty v. McCarty, 453 U.S. 210 (1981), the U.S. Supreme Court held that federal law regarding the military retirement scheme preempts state property division laws. It also held that Congress could decide to change this by appropriate legislation. In 1982, Congress responded to the McCarty decision and enacted the Uniformed Services Former Spouses Protection Act, (Pub.L. No. 97-252, 96 Stat. 730 (1982)), the basic statute dealing with the distribution of military pensions. The Uniform Services Former Spouses Protection Act makes military pensions subject to distribution by state courts in divorce and equitable distribution proceedings. The law also provides for each state to decide whether military retirement is marital or community property distributable upon divorce or whether it is solely the property of the military member. 10 U.S.C. ' 1408(c)(1). The statute provides that pension division jurisdiction is limited to a state where the service member is domiciled, has consented to jurisdiction, or resides not due to military assignment. 10 U.S.C. ' 1408(c)(4). Although a state court can distribute military retirement rights in equitable distribution actions, it cannot force a military member to retire. 10 U.S.C. ' 1408(c)(3).
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