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Military divorce often complicated by overlap of federal and state laws

Military divorces often come with added complexities. For a couple who has moved frequently, it can be a challenge to determine the correct state in which to file for divorce. Pay calculations for child support or alimony may also be more complicated for an active-duty spouse especially if there is Basic Allowance for Subsistence (BAS) and Basic Allowance for Housing (BAH).

Most divorce laws vary state-by-state, but a military divorce also must comply with federal laws, such as the Uniformed Services Former Spouses’ Protection Act (USFSPA). Because of the special consideration and overlap between state and federal law, it is best to consult an experienced military divorce attorney.

Division of military retirement pay

Some military advocates would like to revise the military divorce law as it relates to the division of retirement pay. They are concerned that the federal law allows for lifetime alimony even if a spouse builds a lucrative career or remarries.

The 1982 USFSPA grants states the authority to characterize non-disability military retirement pay as property. The state court can then equitably divide the property between the spouses when the couple separates. The federal law reversed a 1981 Supreme Court decision, which upheld a ban on dividing military retirement pay in divorces. The ban was at odds with how courts routinely apportioned civilian defined benefit retirement plans (i.e. 401ks or IRAs).

Opponents of the federal law do not believe they should have to part with a good chuck of their retirement benefits after spending a career in harm’s way especially as more spouses work full-time or part-time and contribute to their own retirements. However, the law does mean that a spouse who has sacrificed career advancement and frequently relocated receives a portion of the military benefits.

Georgia state alimony considerations


Under Georgia law, a judge must weigh various factors in evaluating and determining the amount of alimony. The judge has broad discretion to award permanent alimony. The factors taken into consideration in part are:

  • Length of the marriage and the couple’s standard of living
  • Age, physical and emotional condition of each spouse
  • Financial resources available
  • Time necessary to seek education or training to seek appropriate employment
  • Contribution of each spouse to the marriage – including child care and education

Generally, the longer the marriage the better chance of an alimony award. But when it comes to the military retirement pay there is no minimum timeframe before a spouse could be entitled to a portion of the benefits. For separating couples, it is also important to note that alimony is deductible for tax purposes to the payor and income to the spouse that receives the alimony.

If you are considering or have separated from a military spouse, the advice of an experienced military divorce attorney is crucial to avoid costly mistakes. A lawyer who has handled similar cases can effectively advocate for your best interests.