Can a court divide military retirement pay upon divorce?
Yes, a court can divide military retirement pay according to state law, and according to Uniformed Services Former Spouses Protection Act (USFSPA) of 1982.
This means that state courts, which grant divorces, may treat retired pay as property and award up to 50 percent to the former spouse.
USFSPA followed a Supreme Court decision the year earlier holding that that federal law barred state courts from dividing any form of military retirement pay. In McCarty v. McCarty, 453. U.S. 210 (1981), the high court ruled that the law prohibited the division and distribution of retirement benefits, according to state community property law.
The McCarty case caused such an outcry among spouses of the military that Congress passed a law specifically saying that military retirement pay can be divided. The Uniformed Services Former Spouses Protection Act (USFSPA) was passed in 1982.
McCarty and USFSPA created confusion about distribution of retirement pay.