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House of Representatives
Session of 2013 - 2014 Regular Session


Posted: February 14, 2013 03:16 PM
From: Representative Jaret Gibbons
To: All House members
Subject: Judicial discretion with regards to division of military retirement income in divorce proceedings
In the near future, I intend to re-introduce legislation which would amend Title 23 (Domestic Relations), to allow for judicial discretion when determining the divisibility of military retirement income in divorce proceedings.

Under the Uniformed Services Former Spouses Protection Act of 1982, the federal government extends the right to states to determine whether military retirement income is classified as marital property. While standard pensions are viewed as divisible in all fifty states, per United States Department of Defense policy, military retirement income is not a pension; it is reduced pay for reduced services while in the Retired Reserves. Military retirement income is paid from current federal government revenues. There are no special retirement accounts, matching funds provisions, vesting or interest; however, if he or she serves honorably for 20 years, then he or she is placed in the Retired Reserves. Additionally, unlike a traditional pension, retired service members must fulfill continuing obligations to remain eligible to receive military retirement income. Military personnel in the Retired Reserves remain subject to the restrictions in the Uniform Code of Military Justice and may be recalled to active duty at any time. Failure to maintain these continuing duties will result in loss of military retirement income.

As such, my legislation would amend Title 23 to specify that the court may treat disposable retired pay or retainer pay, payable to a military member, either as property solely of the member or as property of the member and the spouse of the member. If the court determines that the disposable retired pay or retainer pay of a military member is martial property, the court will be required to calculate the amount consistent with the rank, pay grade and length of service of the member at the time separation. Under current law, military retirement pay is not specifically excluded as marital property. Therefore, regardless of the length of marriage or military service, military retirement pay is often, if not always, subject to division. Given the clear differences between military retirement pay and traditional pensions, the treatment of this pay as property should be considered more carefully by the judicial branch on a case-by-case basis to determine if the pay should be divided between the military member and the former spouse.

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Introduced as HB1192