Statement |
True or False |
Fact |
| The only person entitled to military retainer pay is the service member who serves a minimum of 20+ years. |
True
|
Under federal law, only the military member is entitled to the pay; however states may consider the pay and divide it as marital property and almost all states make an automatic division of the pay during a divorce. Based on Federal Laws and regulation which govern the earning of Military pay, it is classified as RETIRED / RETAINER PAY. |
| Congress supported the McCarty ruling in favor of the career service member due to their continued obligation to possible recall and United States citizen requirements (among other requirements). |
False
|
Congress overruled the McCarty vs. McCarty Supreme Court ruling and backdated the Uniformed Services Former Spouses’ Protection Act (USFSPA) to invalidate the McCarty ruling. The USFSPA was back-dated to allow State Courts to classified military Pay that which is earned in a retired / reserve status as marital property. |
| Military retirement is being treated as a pension by the courts. |
True
|
Military retirement pay was reduced pay for reduced services, but now arguably is deferred compensation due to the Adkins v. Rumsfeld result. There is no military pension nor deferred compensation for past military services rendered. However, military members are still members of the Armed Forces and have obligations as a condition of that pay. |
| The military couple contributes to a retirement plan. |
False
|
The military couple does not contribute marital funds to a military-sponsored retirement plan; nor does the military set funds aside for a retirement plan. Therefore there is logically, no marital property. |
| The service member must serve a minimum of 20+ years to be eligible for military retainer pay. |
True
|
The service member is not eligible for retainer pay until he or she has served honorably for a minimum of 20+ years or unless the military person is placed into a retired status earlier under special legislative authority. A service member is NOT eligible to retire until he/she has submitted the necessary request for retirement and that request is approved. Each service has the right to disapprove any retirement request for the good of the service. A service member can also leave military service at the completion of their contract without retiring, therefore they will receive no retirement pay. |
| The former spouse must be married to the service member for a specific number of years to be eligible for a portion of the service member’s retainer pay. |
False
|
The former spouse becomes eligible for Military Pay that which has yet to be earned immediately upon marriage providing the military member serves 20 or more years of active duty and is transferred into a Retired / Reserve status for Life. However, for there to be direct payments made by the Defense Finance and Accounting Service, there must be a 10 year overlap between the marriage and the military service. |
| Military retainer pay is current income and is taxed by the IRS as current income. |
True
|
The career service member receiving military retainer pay is obligated to our government for possible recall due to their knowledge and skill sets learned while serving. These funds are not for past services rendered as is a “pension” plan. Receipt of military retired pay by the retiree and former spouse is directly connected to performance of federal obligations by the service member. I.R.S Code 26 C.F.R. S 31.3401 (a)-1(b) (1) (ii) states that military retired pay is a current wage and it is taxed as such. If so, how can it be divided as property during a divorce proceeding? |
| The former spouse receiving military retainer pay has no strings attached and can freely commit felonies and take up citizenship elsewhere and continue receiving payments from our government. |
True
|
If the Career military member who is receiving retainer pay does not abide by the Federal laws and regulations that control the earning of this pay, then by federal law this military pay can be reduced and / or completely forfeited. |
| The former spouse can remarry and continue receiving retainer pay. |
True
|
The former spouse can remarry as often as they wish while the service member and their new spouse (if any) support the former spouse and their new wife/husband. In other words, the career military member becomes enslaved to their former (often remarried) spouse. Military retirees are the only federal government employees who must continue dividing their retirement pay with a remarried former spouse. |
| When the USFSPA was passed, divorces that occurred and were closed prior to the inception date were grandfathered and were not affected. |
False
|
The USFSPA law failed to acknowledge closed divorce cases. Many state courts re-open closed divorces cases to gain access to the military retired pay as a missed marital property. Thousands of career military members were forced back into state courts and forced to make up payments for past years. Many career members are forced into bankruptcy as a result. Why should service members who enlisted and married prior to 1983 (USFSPA enacted) be subjected to a law that did not exist at the time? |
| The former spouse must make claim for their retainer pay within a specified amount of time or lose their share. |
False
|
There is no statute of limitations; the former spouse can appear on your doorstop and possibly be awarded all back-payments and interest provided the divorce court judge follows the USFSPA. Today there are former spouses re-opening divorce decrees that are 20-years old asking the courts to award a percentage of the pay retroactive back to the date of divorce |
| Payments paid to a former spouse are based on the number of years married and the rank achieved at the time of divorce. |
False
|
Payments made to the former spouse are based on the percentage awarded in the divorce decree and factored by the rank and earnings at the time of the service member being placed in a retired status (minimum of 20-years). Example: A military member who is divorced as an E-5 Staff Sergeant and is transferred into a retired / reserve status years later (after the divorce) as an E-9 Chief Master Sergeant --will receive the marital property rights based on the E-9 military Pay. This is known as the windfall benefit which is followed in some jurisdictions and not in others. |
| Upon the death of the former spouse, his/her percentage of retainer pay is restored to the service member. |
True
|
Divorce courts treat retired pay as ‘property’ earned by both marital partners. If the portion paid to a former spouse is ‘property’, why does the pay automatically revert back to the service member upon the death of the former spouse? True ‘property’ can be passed onto heirs of the property owner’s choosing. Likewise, if the military member dies before the former spouse, both parties lose their military pay. If it is ‘property’, why would payments stop to the former spouse who is still living? Thus, this pay does not meet the legal test of ‘property’. |
| Educational opportunities provided to soldiers during their career include information and knowledge concerning the USFSPA. |
False
|
The military does not want their defense personnel to be made aware of the gross injustice served to them on a silver platter should they be faced with divorce. |
| The former spouse must have been married to the service member sometime during the 20-year career to be eligible for lifetime USFSPA payments. |
False
|
Divorce courts have awarded former spouses a portion of the retiree’s pay even when the marriage did not occur anytime during the member’s service to his/her country. Where’s the contribution to the military career? |
| Payments to a former spouse under USFSPA do not begin until the career service member is placed in a retired/reserve status. |
False
|
Many divorce courts have awarded payments to commence immediately upon the service member’s 20-year milestone whether they choose to retire or not. In this case, the service member is forced to begin payments to the former spouse out of his/her active duty paycheck or force them to retire and look for employment elsewhere. It seems the former spouse has more rights to military retirement pay than does the service member. |
| USFSPA payments automatically cease upon the death of the former spouse. |
False
|
There are many documented cases where payments continue to the new spouses of deceased former spouses. DFAS requires the service member to notify them if your former spouse is deceased in order to stop division of your pay. The service member MUST send DFAS proof of death. |
| Former spouses who were eligible for full exchange, commissary and medical privileges lose these perks upon remarriage. |
True
|
Former spouses remain eligible for a portion of the service member’s retirement pay after remarriage. Why? Because the perks come out of the government’s pocket; the retirement pay comes out of the service member’s pocket. |
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