Pennsylvania has opted to treat military pensions as marital property. However, The provision in the Divorce Code permitting equitable distribution of veteran's compensation where the veteran has waived a portion of his military retirement pay is preempted by federal law and is of no effect.
By Attorney Alyssa Knisely, Military Divorce Attorney, Harrisburg, PA
The federal Uniformed Services Former Spouses' Protection Act authorizes courts to award up to 50% of the disposable retired pay of a military spouse, provided that the parties were married for at least ten years. (The Uniformed Services Former Spouses' Protection Act, Department of Defense Authorization Act 1983, Pub.L. 97-252, § 1006(a), 96 Stat. 737 (1982), effective February 1, 1983, 10 U.S.C.A. § 1408, retroactive to June 25, 1981, the date of the decision of the McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981)). This 1982 statute nullified the Supreme Court decision providing that state divorce courts are without power to divide and distribute military non-disability retired pay. Pennsylvania has opted to treat military pensions as marital property.
The federal statute does not afford complete protection to the non-military spouse, because military retirement pay that has been waived in order to receive veterans' disability payments is exempt from distribution as marital property on the theory that disability payments are compensation for lost earnings and are therefore not property subject to equitable distribution. Military retirees may therefore, unilaterally exclude a portion of their retirement benefits from the marital estate by the simple expedient of converting retired pay to disability payments. The provision in the Divorce Code permitting equitable distribution of a veteran's compensation where the veteran has waived a portion of his military retirement pay is preempted by federal law and is of no effect. However, an order distributing retirement benefits cannot be defeated by a subsequent conversion to disability payments, and the court can order payment of the shortfall from other funds.
The Survivor Benefit Plan, 10 U.S.C.A. §§ 1447 et seq., permits a military retiree to provide an annuity to a former spouse. The election must be made in writing by either the retiree or the former spouse within one year of the divorce decree. (10 U.S.C.A. § 1450). A military separation payment is not a substitute for a retirement benefit and is not marital property when received post-separation.
If you are involved in a divorce where either you or your spouse is a current or former military service member, you need to discuss your options in the divorce with a competent military divorce lawyer. Simply relying upon the Pennsylvania Divorce Code to enforce a marital settlement agreement could cause severe consequences to the distribution plan. You may contact Shaffer & Engle Law Offices, LLC toll free or email us today.