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upon the death of the payee spouse. See Tax Reform Act of 1986,
Pub. L. 99-514, sec. 1843(b), 100 Stat. 2853. Consequently,
section 71(b)(1)(D) is satisfied if the liability ceases upon the
death of the payee spouse by operation of law. Cf. Notice 87-9,
1987-1 C.B. 421.
The divorce decree provides that the retirement payments
were ordered pursuant to the USFSPA, which states that
Payments from the disposable retired pay of a member
pursuant to this section shall terminate in accordance
with the terms of the applicable court order, but not
later than the date of the death of the member or the
date of the death of the spouse or former spouse to
whom payments are being made, whichever occurs first.
10 U.S.C. sec. 1408(d)(4) (2000). Accordingly, the retirement
payments will terminate, by operation of law, on the date that
either petitioner or Ms. Holdman dies, whichever occurs first.2
Moreover, the USFSPA provides that “Notwithstanding any other
provision of law, this section does not create any right, title,
2 The USFSPA provides that a former spouse may serve upon
the Secretary of Uniformed Services the divorce decree ordering
payments pursuant to the USFSPA. After receipt of such service,
the payments are made directly to the member’s spouse. See 10
U.S.C. sec. 1408(d)(1). While Ms. Holdman did not serve the
Secretary with a copy of the divorce decree or receive payments
directly from the Secretary, the payments were ordered “as
authorized under the Uniformed Services Former Spouses’ Act”.
Prior to enactment of the USFSPA, former spouses had no right to
receive a portion of a member’s military retirement pay. See
McCarty v. McCarty, 453 U.S. 210 (1981). The USFSPA was enacted
to allow courts to award spouses and former spouses an interest
in a member’s military retirement pay. See S. Rept. 97-502
(1982).
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Last modified: November 10, 2007