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“property”, in holding that an educational degree was not
“property” subject to division in a divorce proceeding). But cf.
Pfister v. Commissioner, T.C. Memo. 2002-198, affd. 359 F.3d 352
(4th Cir. 2004); Witcher v. Commissioner, T.C. Memo. 2002-292,
wherein the relevant State statutes (of Virginia and
Pennsylvania, respectively) specifically provided that military
pension benefits qualified as marital property subject to
equitable division.
The mere fact that DFAS made the military retirement
payments directly to petitioner, in amounts specified by the
divorce court decree, does not mean that petitioner had any
ownership interest in the payments. Pursuant to the Uniformed
Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. sec.
1408 (1982), DFAS is generally required to make direct payments
of military retired pay to a former spouse as specified in a
court order.4 Nothing in the USFSPA, however, creates a property
interest where none otherwise exists under applicable State law.
4 Specifically, 10 U.S.C. sec. 1408(d)(1) provides:
After effective service on the Secretary concerned
of a court order providing for the payment of child
support or alimony or, with respect to a division of
property, specifically providing for the payment of an
amount of the disposable retired pay from a member to
the spouse or a former spouse of the member, the
Secretary shall make payments * * * from the disposable
retired pay of the member to the spouse or former
spouse * * * as directed by court order * * *
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