B-206414 L/M, MAR 9, 1982, OFFICE OF GENERAL COUNSEL

B-206414 L/M, MAR 9, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: RETIRED MILITARY MEMBER REQUESTS LEGAL AUTHORITY FOR RULE THAT A STATE COURT MAY NOT DIVIDE MILITARY RETIREMENT PAY PURSUANT TO STATE COMMUNITY PROPERTY LAWS. IN MCCARTY V. MCCARTY, 101 SUP.CT. 2728 (1981), THE SUPREME COURT SO RULED.

MASTER SERGEANT EUGENE F. ROSS, USAF, RETIRED:

THIS IS IN RESPONSE TO YOUR RECENT LETTER TO THE COMPTROLLER GENERAL ASKING FOR THE STATUTORY OR OTHER AUTHORITY "THAT SPECIFICALLY PROHIBITS STATE COURTS FROM ENFORCING DIVISION OF MILITARY RETIRED PAY BETWEEN SPOUSES TO SATISFY COMMUNITY PROPERTY SETTLEMENTS."

YOU INDICATE THAT YOU HAVE COPIES OF COMPTROLLER GENERAL DECISIONS MATTER OF MAJOR HERBERT G. WELLS, B-190985, APRIL 18, 1978 (57 COMP.GEN. 420); AND MATTER OF MAJOR FREDERICK H. WILHELM, B-191592, MAY 2, 1978. APPARENTLY, THESE DECISIONS DID NOT ADDRESS ADEQUATELY YOUR CONCERN WHICH PROMPTED THIS NEW REQUEST.

AS YOU RECOGNIZE, THE TWO COMPTROLLER GENERAL DECISIONS CONCERNED THE LEGALITY OF PROPOSED GARNISHMENTS OF FEDERAL REMUNERATION. THEY DID NOT ADDRESS THE QUESTION OF WHETHER A STATE COURT MAY DIVIDE RETIRED PAY AS A PART OF COMMUNITY PROPERTY; THEY ADDRESS ONLY WHETHER ONCE THE COURT DIVIDES THE PROPERTY, A SPOUSE MAY COLLECT A PORTION OF THE RETIRED PAY BY GARNISHMENT. THE STATUTORY AUTHORITY DISCUSSED IN THE COMPTROLLER GENERAL'S DECISIONS IS PUBLIC LAW 93-647, JANUARY 4, 1975, 88 STAT. 2337, 2357, AS AMENDED BY PUBLIC LAW 95-30, MAY 23, 1977, 91 STAT. 126, 157- 162. THESE LAWS ARE INCLUDED IN THE U.S.C. (SUPPLEMENT III, 1979), TITLE 42, SECTIONS 659-662. THESE LAWS AUTHORIZE GARNISHMENT UNDER STATE PROCEDURES OF THE PAY OF FEDERAL EMPLOYEES AND MILITARY MEMBERS FOR "ALIMONY" AND "CHILD SUPPORT." HOWEVER, AS IS DISCUSSED IN THE TWO COMPTROLLER GENERAL DECISIONS, THE STATUTORY DEFINITION OF ALIMONY EXCLUDES TRANSFERS OF PROPERTY IN CONNECTION WITH ANY COMMUNITY PROPERTY SETTLEMENT. SEE SECTION 662(C), TITLE 42, UNITED STATES CODE.

SINCE THE ISSUANCE OF THE TWO COMPTROLLER GENERAL DECISIONS, THE UNITED STATES SUPREME COURT HAS CONSIDERED THE ISSUE YOU WISH ADDRESSED. MCCARTY V. MCCARTY, 101 SUP.CT. 2728 (1981), THE SUPREME COURT RULED, AMONG OTHER THINGS, THAT FEDERAL LAW PRECLUDES A STATE COURT FROM DIVIDING MILITARY NONDISABILITY RETIRED PAY PURSUANT TO STATE COMMUNITY PROPERTY LAWS. THIS SUPREME COURT CASE APPEARS TO ADDRESS YOUR SPECIFIC CONCERN AND DOES SO WITH REFERENCE TO THE RELEVANT STATUTORY AND OTHER AUTHORITY.

I TRUST THE ABOVE WILL PROVIDE YOU WITH THE INFORMATION YOU REQUIRE.