Division of U.S. Army Reserve and National Guard Pay Upon Divorce

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On June 26, 1981. the United States Supreme Court held in MeCareu L'. MeCartyl that federal iaw precluded a State court's division in a divorce action of nondisability military retired pay pursuant to the state's community property laws. In order toreverse the holding In McCarty, Congress passed the Uniformed Services Former Spouses' Protection Act' which became effective on February 1. 1983.

This article will examine rhe effect of McCarty and the Act on the division by state courts of military reserve retired pay in divorce actions.

I. THE RESERVE COMPONENTS

The Reserve Components of the armed forces include the Army Reserve and the Army National Guard of the United States3 The mission of the Reserve Components is to provide trained personnel for active duty in the armed forces during wartime. a national emergency, or when required by the national security." Congress determines when reservists are to be called ta active duty. Once called. they may be retained as long 8s needd6 Retired reservim mag be ordered to active duty when there are not enough other qualified reservists to meet the needs of the nation.6

A reservist is entitledroretiredpaywhen he hascompletedtwenty years of service and is at least sixty years oid.'Althaugh a reservist's retired pay is calculated differently than that of a service member retiring from active duty, the source and farmula for calculation of

*Judge Adweate Genarsh Corps United States Army Currenth assigned to the

Offm a1 the Staff Judge Advocate VI1 Corpr. Federal Republic of German?, 1933 to present Formerly assigned la the Litigation Diiision. Office of The Judge Advocate General, U S Army. 1981.82, Defense Appellate Dl\iiion Commisrionertath.Court of hlilitary Reimr. D S Army Legal Services Agency, 1978-80 Trial Counsel. Defense Counsel, Legal Assistame Ofhcer. Office of the Staff Judge Adiacare. 3rd Infantry Diviaian Aaehaffenburg, Federal Republic of Germany 1976.78 J D St Mary's Uni.ersity 1975, E.*,

Unirer~if? of Georgia, 1964 Completed 31st Judge Adroeate Offleer Graduate Course 1982-83. Member ofthe barafthestaleofTexas

'453 us 210 (19811iPuh.L.So 97-252 TIT X.991001-1006 96Stat 730i19821(codifiodatlOrSC 10

MILITARY LAIY REVIEW [VOL. 102

the pay are the same. Both are paid by the federal government and the amount is based on the number of years served in the armed forces.

The nature of reserve duty is different than that of active duty Typically, B reseivist spendsonlyasmall portionofhisor hertimeon military duties. Except in the event of a call to active duty, neither a reservist nor a reserrist'e family are required to move pursuant to military orders. The similarities of a reservist's retirement benefits, however. make a careful analysis of the McCartydecision necessary to determine the current status of the division of reserve retired pay ~n divorce actions.

11. THE McCARTY DECISION

Richard and Patricia MvIcCarty had been married for nineteen years when he filed wit for divorce in California. For eighteen of those nineteen years Colonel YcCarty had served on acthe duty in the Army. In his request for dissolution of the marriage, he asked that his retirement benefits. which had not yetreated, be awarded to him as separate property. Mrs. McCarty contended that the retirement benefits were community property under California law. The Supreme Court of California heid that Colonel MeCarty's military retired pay was subject to division as quasicommunity propertpaand ordered him to pay his wife a portion of his monthly pension. The decision in the case faiianed a...