Military Lifetime Alimony
Military Retirement Pay Division is not Alimony
The term Military Lifetime Alimony is beginning to surface on the Internet. There continues to be confusion between spousal support and the requirements for division of property provided by the Uniformed Services Former Spouses Protection Act (USFSPA).
Those who would like to change the USFSPA appear to be describing the statute as military lifetime alimony, which is incorrect.
When Internet articles refer to the division of the military pension as equating to lifetime military alimony payments and then other blogs create spin-off articles repeating this gossipy phrase, the result is numerous postings spreading misinformation like a virus. Spin off articles are often created by websites using article curation software that will copy (or steal) phrases from websites. But even worse, an actual person might read the first “half-truth” posting and made a conscious decision to spread the tale.
Alimony is just alimony. There’s no special military alimony laws for military families. There’s no military alimony requirements. Depending on the state you divorce in, alimony may be:
- denied,
- set for a number of months, or
- awarded for a lifetime.
Federal laws permit states to declare the military retired pay as marital property and in doing so, states may then divide this property, awarding payments to the military spouse. This division lasts for a lifetime, but it is not alimony.
In fact, a military spouse can be awarded both a portion of military retirement pay and alimony in a divorce decree.
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Confusion May Cost You Money
The language of your military divorce decree should keep the references to alimony payments and division of military retiree pay separate so as to avoid any confusion. It can be expensive to return to court for clarification. Alimony falls under the requirements of spousal support, where as payments from a service members’ income falls under laws regulating property or division of assets.
Military Lifetime Alimony is another military divorce myth, similar to misunderstandings behind the DFAS 10 year rule.
Florida, Massachusetts, and New Jersey Discuss Lifetime Alimony
Florida, Massachusetts, and New Jersey have been discussing 2013 changes and/or an end to lifetime alimony, but this should not be confused with the military division of property awarded by the USFSPA.
Hello,
I am in the early stages of applying for alimony payment. How would I calculate how much I would be receiving?
Thank you,
Christine
This website is the one that is providing the myths. It literally IS lifetime support. To say it is not alimony is false. It may not be called alimony or spousal support, but that is exactly what it is. It is retainer pay and only stupidly and ignorantly referred to as a “pension”. The purpose of retainer pay is for the servicemember to be on standby in case there is a contingency or shortfall that would require activation of the “retired” military member. There is nothing a non-servicemember puts into it and he/she is not subject to the UCMJ and does not have to remain a citizen of this country. You can use the default answer “she stayed home with the kids” or “she had to make several moves”. Both answers apply to many families who are not in the service, so where is your argument now? MIlitary members put years of wear and tear on their bodies, have to serve at least 20 years and then are subject to recall, which is why they are being retained and are receiving reduced income for reduced services. It is also why they are taxed as if it were a job (because it is). If this retired/retainer pay is property, then how much can I get for it if I put it up for auction?? The answer is nothing because it has no value. There is no account with money siting in it that is drawing interest and it is not something that can be traded or passed on to another individual, so how can someone say it’s property and how can someone say with all honesty that it is not lifetime support of lifetime alimony?? He/she can’t because that is exactly what it is. Please stop misleading people.
This is not a myth. Whatever you choose to call it, it is still lifetime alimony. Why call retainer pay, property? Be real here. It is not property, it is what we worked for our entire military life and they want to call it property. In the constitution, it states that all laws are to be administered equitably to all citizens. This law does not do that. Each state has their own rules on implementation. Congress should repeal this gross injustice to military personnel. Courts should just be allowed to administer alimony and not division of the service members retainer pay.
Mathematics shows that the 2017 NDAA amendment to USFSPA can raise the monthly payment for either the military member or the ex-spouse. You won’t find this type of analysis anywhere else!
State court violation Separation of Powers DISABLED VETERANS
Business at hand. If, and when the question is a disabled veteran’s VA disability compensation as alimony/support, something to consider first.
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The “separation of powers” doctrine is completely ignored by Florida and most state court judges, acting like doctors, holding themselves as qualified, as a provider of health care, policy making outside their jurisdiction. Substituting their judgment for the judgment of VA doctors and medical professionals awarding as alimony a disabled veteran’s VA disability compensation. To allow what has been happening, was this the intent of Congress?
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CONSTITUTION OF THE STATE OF FLORIDA
ARTICLE II GENERAL PROVISIONS
SECTION 3. Branches of government.—“The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”
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If the United State court of appeals, in VETERANS FOR COMMON SENSE, VETERANS UNITED FOR TRUTH, INC., v. ERIC K. SHINSEKI, December 13, 2011, ruled, “As much as we may wish for expeditious improvement in the way the VA handles mental health care and service-related disability compensation, we cannot exceed our jurisdiction to accomplish it,..” As well, Florida courts are in no legal position to do so. Despite the law, it continues.
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“It is well established that disability benefits are a protected property interest and may not be discontinued without due process of law.” See Atkins v. Parker, 472 U.S. 115, 128 (1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)”
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14th Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, with due process of law, ..”
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Thank you for taking time to share this. We will continue to add more about Florida that will show up on in this category
Thanks Marsha for your clear explanation as to what exactly Military Retired PAY is by it’s original founding LAW. Congress was really Out-To-Lunch when they developed the USFSPA – Obviously, their researchers were “otherwise occupied” that distracted them from checking back in the federal laws to show that Congress cound NOT pass the USFSPA without changing the federal law that brought military retired pay into being in 1946. When current income – i.e. – military retired PAY – is used as spousal maintenance – the US Tax Court has determined in a legal decision that that payment is ALIMONY and entitles the payer to deduct it and the payee to claim it. Besides Massachusetts has alredy passed the Alimony Reform Act into law and it is being used to modify divorce decrees right now ! ! !
This is the type of misleading information we are trying to avoid.
The military retirement pay is not alimony. As Marsha pointed out, the division of property is more like a dividing a stock, a marital asset.
The IRS has not declared retired pay alimony. The IRS declared that under certain circumstances, the IRS will permit the military retirement pay figure to be reported on the alimony line of a tax return. Your comments might mislead readers to think EVERY spouse/service member can claim retired pay as alimony which is false.
*Please post any further tax comments on on this post where we previously discussed the alimony tax adjustment to income.
You think that my info is “MISLEADING” – ? – How about your baseless, emotional vitriol that has buffaloed the American Public since military Retired PAY was created in 1946 ! I know what the USFSPA says – just becasue it’s “the law” doesn’t mean it’s “legal” – the USFSPA is a stab in the back of career military members with hot acid poured into the wound, just to blame the military member for the failure of their marriage(s). Before you go making “out in the weeds” statements like that, you REALLY NEED TO READ THE MILITARY RETIRED PAY LAW and understand that military retired pay is CURRENT TAXABLE INCOME – it is N-O-T a “pension” ! If retired pay isn’t “alimony” then why is it deducted from the retiree’s 1099-R and addred to the former spouse’s 1099-R ? (Not-so-smart, eh ?) Period, end of discussion ! ! ! ! !
When Congress passed the USFSPA, it was totally ignorant of the ramifications of language that stated that a state court ‘may treat MRP as property.’ In my opinion, that was an incorrect characterization. (I am not an attorney.) The MRP is certainly an asset (just like a mutual fund is), but as to its being classified as property, it does not have the same means of being treated like property. For example, the couple has furniture. You can put that furniture in your will, give it away while you are alive, divide it up at the divorce, sell it, transfer it, auction it off on eBay, use it as collateral for a loan or contract, and in general, do with it what you want. Indeed, you do not pay federal income taxes on it when you do any of those things. Further, the spouse does not give up that property when the service member is recalled to active duty. The receipt of MRP comes with many restrictions on the part of the service member only, not the spouse. When you divide up property (the furniture), you don’t have restrictions that will affect it.
The MRP cannot be put into your will, sold, or otherwise disposed of, in accordance with the restrictions on it that are in the law. It is MONEY. And the IRS treats it as money (income to both parties) and taxes it. So, while ‘alimony’ has a definition and is classified as money, so does the word ‘property.’ Clever lawyers have written divorce decrees that are declaring the MRP as alimony, but with a little different twist (to satisfy the other party’s defense that the law doesn’t say it stops upon remarriage). That way the service member can deduct the amount paid to the spouse, and the spouse will pay taxes on it (just as he/she would in the other scenario. Lawyers have also put into decrees that if the spouse cohabits or remarries, the MRP stops. We live in a society that still believes that when someone gets married, the other party is responsible for taking care of the new spouse. (I won’t get into that.)
Thus, when I look at the definitions and I see how MRP is being treated, I have no problem considering it as alimony, notwithstanding that a court can order both the division of the MRP and alimony. The government is treating MRP as if it were alimony (albeit the lifetime aspect), just as it is defining property differently, too.