- 8 - amounts received as retired pay for service in the uniformed services." The above referenced language of the Act leads to the conclusion that although a State court "may treat disposable retired pay payable to a member" as property of the member and his spouse for State law purposes, the retired pay is that of the member. The Act itself does not give the former spouse an interest in the retired pay. Here, the court ordered payments to petitioner out of the disposable retired pay of her former spouse. The decree did not, and could not, make her the recipient of "retired pay". See 10 U.S.C. sec. 1408(c)(1) and (2) (1994). Petitioner received a division of property in the form of monthly payments. This was not a taxable event. See sec. 1041. As Oregon is not a community property State,4 the decree here did not have the effect of dividing a preexisting community ownership of the retired pay of petitioner's former spouse. See Powell v. Commissioner, 101 T.C. 489, 497-499 (1993); Darby v. Commissioner, 97 T.C. 51, 67 (1991). Because the retired pay, out of which petitioner received her payments, is that of petitioner's former spouse, he remains taxable on his retired 4See, e.g., Swan v. Swan, 720 P.2d 747, 752 (Or. 1986); Wood v. Wood, 676 P.2d 338, 340 (Or. Ct. App. 1984).Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011