Federal Pension Benefits: The Reach of Preemption

This Article examines whether the law forbidding division of certain federal pension benefits between divorcing spouses applies as well to the division of assets whose source- may be traced to federal pension benefits theretofore received. After an examination of the Hisquierdo and McCarty decisions and four California court of appeal cases, the Article concludes that preemption of division of received railroad retirement and social security benefits does not automatically follow from the decided cases. Recent legislation reversing the McCarty decision will largely eliminate preemption of division of received military retired pay. The author believes that Congress should extend the reach of the legislation reversing McCarty to railroad retirement benefits and clarify the status of military retired pay already in hand: Congress also should assure that social security benefits are fully divisible under state law.

The Article further discusses alternative bases for state jurisdiction over assets which might otherwise be considered nondivisible because of the federal preemption doctrine.