Military Pension Division: Crossing the Minefield

In the area of family law, where state laws and local rules are of primary importance, military pension division is an anomaly. It is gov erned by federal law, yet the federal statute begins by asserting the primacy of state laws as to whether to make military pensions divisible. The statute then sets out a series of rules for the division of military pensions which completely rewrite state jurisdictional rules but, on the other hand, completely defer to state definitions and case law in the areas of domicile and consent to jurisdiction. A more complex mix of state and federal rules would be hard to imagine. The purpose of this article is to broadly outline some issues, prob lems, and possible solutions in the division of military pensions under the Uniformed Services Former Spouses' Protection Act (USFSPA or Act).1 This includes an overview of the federal statutory framework for division of these pensions, the rules and roadblocks a family law practitioner is likely to encounter in this area, and the methods of actually dividing a military pension. This field of law is especially challenging to domestic attorneys be cause of the federal overlay regarding state pension division law. It is important to know the law and stay on top of new developments to avoid committing serious errors that may hurt the client. The threat of malpractice in the area of military pension division is a very real one. In Smith v. Lewis,2 an attorney was found to have a