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Proposed PA Legislation Set To Establish New Parameters for the PA Divorce Code and Military Pensions

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The proposed amendments introduced on May 21, 2012 in the PA House would amend Title 23 Pa.C.S. Section 3502(a.1) regarding military pay, to establish PA Courts with authority allowable under the U.S. Code to provide for equitable distribution of disposable retired pay or retainer pay.

By Attorney Nichole A. Collins, Military Divorce Lawyer, Harrisburg, PA

In a prior blog article (See link to article) I commented on the ability of PA Courts to order the equitable distribution of certain assets, such as military retirement or pension plans.  That ability is limited by Federal Law.  Something known as pre-emption.  That is, a state court cannot override the Federal Law, unless it is given the permission to do so by Federal Law.

The Problem

Title 10 U.S.C. Section 1408(c) provides that "a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court."  However, the PA Divorce Code has no such provision allowing equitable distribution of disposable retired pay or retainer pay.

The Solution

May 21, 2012: enter the 2011 Pennsylvania House Bill No. 2394, Pennsylvania One Hundred Ninety-Sixth General Assembly - 2011-2012 PENNSYLVANIA BILL TEXT TITLE: An Act amending Title 23 (Domestic Relations) of the Pennsylvania Consolidated Statutes, in divorce, further providing for equitable division of marital property.  That provision is quoted as follows:

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows: Section 1. Section 3502 of Title 23 of the Pennsylvania Consolidated Statutes is amended by adding a subsection to read: § 3502. Equitable division of marital property. * * *

(a.1) Military pay.--The court, under 10 U.S.C. § 1408(c) (relating to payment of retired or retainer pay in compliance with court orders), may treat disposable retired pay or retainer pay payable to a military member either as property solely of the member or as property of the member and the spouse of the member. If the court determines that the disposable retired pay or retainer pay of a military member is marital property, the court shall calculate the amount consistently with the rank, pay grade and time of service of the member at the time of separation. * * *

Section 2. The addition of 23 Pa.C.S. § 3502(a.1) shall apply to actions commenced on or after the effective date of this section.

Section 3. This act shall take effect in 60 days.

It should be noted that this is only proposed legislation and it has not been passed by the Senate of PA and confirmed by the Governor.  Accordingly, it does not yet apply to cases that may encompass such circumstances.  However, there is likely little or no opposition to such legislation as it has the express provision for same in the Federal Statute noted above. 

If you are involved in a divorce with either a former or current military member, you need to investigate your options closely.  You should consult with an experienced military divorce attorney.  You may contact Shaffer & Engle Law Offices, LLC toll free or email us today.

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