Flying Solo
Nextsteps FlyingSolo Our Store About Us Life Management Home

 
Browse Resources:

Bankruptcy

Columns

Divorce & Estate Planning

Divorce & Separation

Divorce Mediation

Divorce Tax

Divorce Tips

Frequently Asked Questions

General Divorce

Military Divorce

Remarriage & Stepfamilies

State Information

Un-Married Couples

 
State Rules on the Divisibility of Military Retired Pay as Property Incident to Divorce

(Note: These cases have not been Shepardized. They are provided solely as a starting point for research. State statutes should also be updated in research.)

Alabama

Divisible at court's discretion. Ex Parte Vaughn, 634 So. 2d 533 (Alabama 1993) See also: Welsh v. Welsh, 636 So. 2d 464 (Ala. Ct of App 1994) (Note; there is much turbulence in Alabama courts over this issue.)

Alaska

Divisible. Chase v. Chase, 662 P.2d 944 (Alaska 1983), overruling Cose v. Cose, 592 P.2d 1230 (Alaska 1979), cert. denied, 453 U.S. 922 (1982). Federal law prohibits a claim for division of military retired pay where a divorce decree was entered prior to June 25, 1981. Johnson v. Johnson, 824 P.2d 1381 (Alaska 1992). Non-vested retirement benefits are divisible. Laing v. Laing, 741 P.2d 649 (Alaska 1987). Note also Morlan v. Morlan, 720 P.2d 497 (Alaska 1986) (the trial court ordered a civilian employee to retire in order to ensure the spouse received her share of a pension--the pension would be suspended if the employee continued working; on appeal, the court held that the employee should have been given the option of continuing to work and periodically paying the spouse the sums she would have received from the retired pay; in reaching this result, the court cited the California Gillmore decision).

Arizona

Divisible. DeGryse v. DeGryse, 135 Ariz. 335, 661 P.2d 185 (Ariz. 1983); Edsall v. Superior Court of Arizona, 143 Ariz. 240, 693 P.2d 895 (Ariz. 1984); Van Loan v. Van Loan, 116 Ariz. 272, 569 P.2d 214 (1977) (a nonvested military pension is community property). There is no impediment in federal law to the award of SBP to a former spouse. Lowell v. Lowell, 831 P. 2d 838 (Ariz. Ct. App. 1991). A civilian retirement plan case (Koelsch v. Koelsch, 148 Ariz. 176, 713 P.2d 1234 (Ariz. 1986)) held that if the employee is not eligible to retire at the time of the dissolution, the court must order that the spouse begin receiving the awarded share of retired pay when the employee becomes eligible to retire, whether or not he or she does retire at that point. Flynn v. Rogers, 834 P.2d 148 (Ariz. 1992) (the court held that laches does not, as a matter of law, serve to bar the reopening of a "window decree" nearly 6 1/2 years after the original decree was entered).

Arkansas

Divisible. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986); but see Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986) (military retired pay not divisible where the member had not served 20 years at the time of the divorce, and therefore the military pension had not "vested").

California

Divisible. In re Fithian, 10 Cal. 3d 592, 517 P.2d 449, 111 Cal. Rptr. 369 (1974); In re Hopkins, 142 Cal. App. 3d 350, 191 Cal. Rptr. 70 (1983). A non-resident servicemember did not waive his right under the USFSPA to object to California's jurisdiction over his military pension by consenting to the court's jurisdiction over other marital and property issues. Tucker v. Tucker, 226 Cal. App. 3d 1249 (1991) and Hattis v. Hattis, 242 Cal. Rptr. 410 (Ct. App. 1987). While a former spouse is barred from reopening a pre-1982 dissolution of the marriage to be awarded an increased portion of the retirees military retirement, past due benefits are not affected by the amendments to 10 U.S.C.  1408 (1988) barring pre-McCarty modifications. Nonvested pensions are divisible; In re Brown, 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633 (1976). In re Mansell, 265 Cal. Rptr. 227 (Cal. App. 1989) (on remand from Mansell v. Mansell, 490 U.S. 581 (1989), the court held that gross retired pay was divisible since it was based on a stipulated property settlement to which res judicata had attached). State law has held that military disability retired pay is divisible to the extent it replaces what the retiree would have received as longevity retired pay (In re Mastropaolo, 166 Cal. App. 3d 953, 213 Cal. Rptr. 26 (1985); In re Mueller, 70 Cal. App. 3d 66, 137 Cal. Rptr. 129 (1977), but the Mansell case raises doubt about the continued validity of this proposition. If the member is not retired at the time of the dissolution, the spouse can elect to begin receiving the award share of "retired pay" when the member becomes eligible to retire, or anytime thereafter, even if the member remains on active duty. In re Luciano, 104 Cal. App. 3d 956, 164 Cal. Rptr. 93 (1980); see also In re Gillmore, 29 Cal. 3d 418, 629 P.2d 1, 174 Cal. Rptr. 493 (1981) (same principle applied to a civilian pension plan).

Colorado

Divisible. Gallo v. Gallo, 752 P.2d 47 (Colo. 1988) (vested military retired pay is marital property); see also In re Grubb, 745 P.2d 661 (Colo. 1987) (vested but unmatured civilian retirement benefits are marital property; expressly overrules any contrary language in Ellis v. Ellis, 191 Colo. 317, 552 P.2d 506 (1976)) and In re Nelson, 746 P.2d 1346 (Colo. 1987) (applies Grubb in a case involving vested contingent pension benefits--contingency was that the employee must survive to retirement age). The Gallo decision will not be applied retroactively, however. In re Wolford, 709 P.2d 454 (Colo. Ct. App. 1989). Note that notwithstanding language in the case law, some practitioners in Colorado Springs report that local judges divide military retired pay or reserve jurisdiction on the issue even if the member has not served for 20 years at the time of the divorce.

Connecticut

Probably divisible. Conn. Gen. Stat.  46b-81 (1986) gives courts broad power to divide property. Note Thompson v. Thompson, 183 Conn. 96, 438 A.2d 839 (1981) (nonvested civilian pension is divisible).


Delaware

Divisible. Smith v. Smith, 458 A.2d 711 (Del. Fam. Ct. 1983). Nonvested pensions are divisible; Donald R.R. v. Barbara S.R., 454 A.2d 1295 (Del. Sup. Ct. 1982).

District of Columbia

Probably divisible. See Barbour v. Barbour, 464 A.2d 915 (D.C. 1983) (vested but unmatured civil service pension held divisible; dicta suggests that nonvested pensions also are divisible).

Florida

Divisible. As of October 1, 1988, all vested and nonvested pension plans are treated as marital property to the extent that they are accrued during the marriage. Fla. Stat.  61.075(3)(a)4 (1988); see also  3(1) of 1988 Fla. Sess. Law Serv. 342. These legislative changes appear to overrule the prior limitation in Pastore v. Pastore, 497 So. 2d 635 (Fla. 1986) (only vested military retired pay can be divided). This interpretation was recently adopted by the court in Deloach v. Deloach, 18 Fam. L. Rep. 1105 Fla. Dist. Ct. App., November 21, 1991).

Georgia

Probably divisible. Cf. Courtney v. Courtney, 256 Ga. 97, 344 S.E.2d 421 (1986) (nonvested civilian pensions are divisible); Stumpf v. Stumpf, 249 Ga. 759, 294 S.E.2d 488 (1982) (military retired pay may be considered in establishing alimony obligations); Holler v. Holler, 257 Ga. 27, 354 S.E.2d 140 (1987) (the court "[a]ssum[ed] that vested and nonvested military retirement benefits acquired during the marriage are now marital property subject to equitable division", citing Stumpf and Courtney, but then decided that military retired pay could not be divided retroactively if it was not subject to division at the time of the divorce).

Hawaii

Divisible. Linson v. Linson, 1 Haw. App. 272, 618 P.2d 748 (1981); Cassiday v. Cassiday, 716 P.2d 1133 (Haw. 1986). In Wallace v. Wallace, 5 Haw. App. 55, 677 P.2d 966 (1984), the court ordered a Public Health Service employee (who is covered by the USFSPA) to pay a share of retired pay upon reaching retirement age whether or not he retires at that point. He argued that this amounted to an order to retire, violating 10 U.S.C.  1408(c)(3), but the court affirmed the order. In Jones v. Jones, 780 P.2d 581 (Haw. Ct. App. 1989), the court ruled that Mansell's limitation on dividing VA benefits cannot be circumvented by awarding an offsetting interest in other property. It also held that Mansell applies to military disability retired pay as well as VA benefits.

Idaho

Divisible. Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975) (reinstated by Griggs v. Griggs, 197 Idaho 123, 686 P.2d 68 (1984)). Courts cannot circumvent Mansell's limitation on dividing VA benefits by using an offset against other property. Bewley v. Bewley, 780 P.2d 596 (Idaho Ct. App. 1989).

Illinois

Divisible. In re Dooley, 137 Ill. App. 3d 407, 484 N.E.2d 894 (1985); In re Korper, 131 Ill. App. 3d 753, 475 N.E.2d 1333 (1985). Korper points out that under Illinois law a pension is marital property even if it is not vested. In Korper, the member had not yet retired, and he objected to the spouse getting the cash-out value of her interest in retired pay. He argued that the USFSPA allowed division only of "disposable retired pay," and state courts therefore are preempted from awarding the spouse anything before retirement. The court rejected this argument, thus raising the (unaddressed) question whether a spouse could be awarded a share of "retired" pay at the time the member becomes eligible for retirement (even if he or she does not retire at that point); See In re Luciano, 104 Cal. App. 3d 956, 164 Cal. Rptr. 93 (1980) for an application of such a rule. See also Ill. Stat. Ann. ch. 40, para. 510.1 (Smith-Hurd Supp. 1988) (allows modification of agreements and judgments that became final between 25 June 1981 and 1 February 1983 unless the party opposing modification shows that the original disposition of military retired pay was appropriate).

Indiana

Divisible. Indiana Code  31-1-11.5-2(d)(3) (1987) (amended in 1985 to provide that "property" for marital dissolution purposes includes, inter alia, "[t]he right to receive disposable retired pay, as defined in 10 U.S.C.  1408(a), acquired during the marriage, that is or may be payable after the dissolution of the marriage"). The right to receive retired pay must be vested as of the date the divorce petition in order for the spouse to be entitled to a share (Kirkman v. Kirkman, 555 N.E.2d 1293 (Ind. 1990), but courts should consider the nonvested military retired benefits in adjudging a just and reasonable division of property (In re Bickel, 533 N.E.2d 593 (Ind. Ct. App. 1989). Authur v. Arthur, 519 N.E.2d 230 (Ind. Ct. App. 1988) (Second District ruled that  31-1-11.5-2(d)(3) cannot be applied retroactively to allow division of military retired pay in a case filed before the law's effective date, which was 1 September 1985). But see Sable v. Sable, 506 N.E.2d 495 (Ind. Ct. App. 1987) (Third District ruled that  31-1-11.5-2(d)(3) can be applied retroactively).

Iowa

Divisible. In re Howell, 434 N.W.2d 629 (Iowa 1989). The member had already retired in this case, but the decision may be broad enough to encompass nonvested retired pay as well. The court also ruled that disability payments from the Veterans Administration, paid in lieu of a portion of military retired pay, are not marital property. Finally, it appears the court intended to award the spouse a percentage of gross military retired pay, but it actually "direct[ed] that 30.5% of [the husband's] disposable retired pay, except disability benefits, be assigned to [the wife] in accordance with section 1408 of Title 10 of the United States Code..." (emphasis added). Mansell may have overruled the court's holding that it has authority to divide gross retired pay.

Kansas

Divisible. Kan. Stat. Ann.  23-201(b) (1987), effective July 1, 1987 (vested and nonvested military pensions are now marital property); In re Harrison, 13 Kan. App. 2d 313, 769 P.2d 678 (1989) (applies the statute and holds that it overruled the previous case law that prohibited division of military retired pay).

Kentucky

Divisible. Jones v. Jones, 680 S.W.2d 921 (Ky. 1984); Poe v. Poe, 711 S.W.2d 849 (Ky. Ct. App. 1986) (military retirement benefits are marital property even before they "vest"); H.R. 680, amending Ky. Rev. Stat. Ann.  403.190 (Michie/Bobbs-Merrill 1986), expressly defines marital property to include retirement benefits.

Louisiana

Divisible. Swope v. Mitchell, 324 So. 2d 461 (La. 1975); Little v. Little, 513 So. 2d 464 (La. Ct. App. 1987) (nonvested and unmatured military retired pay is marital property); Gowins v. Gowins, 466 So. 2d 32 (La. Sup. Ct. 1985) (soldier's participation in divorce proceedings constituted implied consent for the court to exercise jurisdiction and divide the soldier's military retired pay as marital property); Jett v. Jett, 449 So. 2d 557 (La. Ct. App. 1984); Rohring v. Rohring, 441 So. 2d 485 (La. Ct. App. 1983). See also Campbell v. Campbell, 474 So.2d 1339 (Ct. App. La. 1985) (a court can award a spouse a share of disposable retired pay, not gross retired pay, and a court can divide VA disability benefits paid in lieu of military retired pay; this approach conforms to the dicta in the Mansell concerning divisibility of gross retired pay).

Maine

Divisible. Lunt v. Lunt, 522 A.2d 1317 (Me. 1987). See also Me. Rev. Stat. Ann. tit. 19,  22-A(6) (1989) (provides that the parties become tenants-in-common regarding property a court fails to divide or to set apart).

Maryland

Divisible. Nisos v. Nisos, 60 Md. App. 368, 483 A.2d 97 (1984) (applies Md. Fam. Law Code Ann.  8-203(b), which provides that military pensions are to be treated the same as other pension benefits; such benefits are marital property under Maryland law; see Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981)). See also Ohm v. Ohm, 49 Md. App. 392, 431 A.2d 1371 (1981) (nonvested pensions are divisible). "Window decrees" that are silent on division of retired pay cannot be reopened simply on the basis that Congress subsequently enacted the USFSPA. Andresen v. Andresen, 317 Md. 380, 564 A.2d 399 (1989).



Massachusetts

Divisible. Andrews v. Andrews, 27 Mass. App. 759, 543 N.E.2d 31 (1989). Here, the spouse was awarded alimony from military retired pay; she appealed, seeking a property interest in the pension. The trial court's ruling was upheld, but the appellate court noted that "...the judge could have assigned a portion of the pension to the wife [as property]."

Michigan

Divisible. Keen v. Keen, 160 Mich. App. 314, 407 N.W.2d 643 (1987); Giesen v. Giesen, 140 Mich. App. 335, 364 N.W.2d 327 (1985); McGinn v. McGinn, 126 Mich. App. 689, 337 N.W.2d 632 (1983); Chisnell v. Chisnell, 82 Mich. App. 699, 267 N.W.2d 155 (1978). See also Boyd v. Boyd, 116 Mich. App. 774, 323 N.W.2d 553 (1982) (only vested pensions are divisible).

Minnesota

Divisible. Deliduka v. Deliduka, 347 N.W.2d 52 (Minn. Ct. App. 1984). This case also holds that a court may award a spouse a share of gross retired pay; that portion of the decision may have been overruled by Mansell. See also Janssen v. Janssen, 331 N.W.2d 752 (Minn. 1983) (nonvested pensions are divisible); Mortenson v. Mortenson, 409 N.W. 2d 20 (Minn. Ct. App. 1987) (jurisdiction over the soldier's retired pay cannot be based solely upon his past residence in the state absent his consent).

Mississippi

Divisible SOMETIMES. In Flowers v. Flowers, No. 91-CA-1154, 1993 Miss. LEXIS 426 (Miss. Sep. 30, 1993), the Mississippi Supreme Court clarified that Mississippi law does not grant a spouse an interest in or right to a portion of his/her spouse's retirement pension - including a military pension. However, Mississippi courts will respect pension rights granted under the laws of another jurisdiction in which the military member was domiciled for all or part of the period of service, and divide military pensions accordingly. Note that even if retirement pay is determined to be separate property, Mississippi continues to regard retirement benefits as income that will be considered in fixing alimony, Brown v. Brown, 574 S. 2d 688, 691 (Miss. 1990).

Missouri

Divisible. Only disposable retired pay is divisible. Moon v. Moon, 795 S.W.2d 511 (Mo. Ct. App. 1990). Fairchild v. Fairchild, 747 S.W.2d 641 (Mo. Ct. App. 1988) (nonvested and nonmatured military retired pay are marital property); Coates v. Coates, 650 S.W.2d 307 (Mo. Ct. App. 1983). 10 U.S.C.  1408 bars a spouses action seeking one half of the retiree's military pension where the couple were originally divorced prior to 25 June 1981, and the court did not treat, or reserve jurisdiction to treat, any portion of the former husband's pension as marital property.


Montana

Divisible. In re Marriage of Kecskes, 210 Mont. 479, 683 P.2d 478 (1984); In re Miller, 37 Mont. 556, 609 P.2d 1185 (1980), vacated and remanded sub. nom. Miller v. Miller, 453 U.S. 918 (1981).

Nebraska

Divisible. Taylor v. Taylor, 348 N.W.2d 887 (Neb. 1984); Neb. Rev. Stat.  42-366 (1989) (pensions and retirement plans are part of the marital estate).

Nevada

Probably divisible. Tomlinson v. Tomlinson, 729 P.2d 1303 (Nev. 1986) (the court speaks approvingly of the USFSPA in dicta but declines to divide retired pay in this case involving a final decree from another state). Tomlinson was legislatively reversed by the Nevada Former Military Spouses Protection Act (NFMSPA), Nev. Rev. Stat.  125.161 (1987) (military retired pay can be partitioned even if the decree is silent on division and even if it is foreign). The NFMSPA has been repealed, however, effective March 20, 1989; see Senate Bill 11, 1989 Nev. Stat. 34. The Nevada Supreme Court subsequently has ruled that the doctrine of res judicata bars partitioning military retired pay where "the property settlement has become a judgment of the court"; see Taylor v. Taylor, 775 P.2d 703 (Nev. 1989). Nonvested pensions are community property. Gemma v. Gemma, 778 P.2d 429 (Nev. 1989). The spouse has the right to elect to receive his or her share when the employee spouse becomes retirement eligible, whether or not retirement occurs at that point. Gemma v. Gemma, 778 P.2d 429 (Nev. 1989).

New Hampshire

Divisible. "Property shall include all tangible and intangible property and assets...belonging to either or both parties, whether title to the property is held in the name of either or both parties. Intangible property includes...employment benefits, [and] vested and non-vested pensions or other retirement plans.... [T]he court may order an equitable division of property between the parties. The court shall presume that an equal division is an equitable distribution...." N.H. Rev. Stat. Ann.  458:16-a (1987) (effective Jan 1, 1988). This provision was relied on by the New Hampshire Supreme Court in Blanchard v. Blanchard, 578 A.2d 339 (N.H. 1990), when it overruled Baker v. Baker, 120 N.H. 645, 421 A.2d 998 (1980) (military retired pay not divisible as marital property, but it may be considered "as a relevant factor in making equitable support orders and property distributions"). Non-vested military pension is property subject to equitable distribution in a divorce action. Halliday v. Halliday, 593 A.2d 233 (N.H. 1991).

New Jersey

Divisible. Castiglioni v. Castiglioni, 192 N.J. Super. 594, 471 A.2d 809 (N.J. 1984); Whitfield v. Whitfield, 222 N.J. Super. 36, 535 A.2d 986 (N.J. Super. Ct. App. Div. 1987) (nonvested military retired pay is marital property); Kruger v. Kruger, 139 N.J. Super. 413, 354 A.2d 340 (N.J. Super. Ct. App. Div. 1976), aff'd, 73 N.J. 464, 375 A.2d 659 (1977). Post-divorce cost-of-living raises are divisible; Moore v. Moore, 553 A.2d 20 (N.J. 1989) (police pension). Portion of retiree's military pension not subject to division as property could be garnished to satisfy alimony payments. Slayton v. Slayton, 593 A.2d 365 (N.J. Super Ct. 1991).

New Mexico

Divisible. Walentowski v. Walentowski, 100 N.M. 484, 672 P.2d 657 (N.M. 1983); Stroshine v. Stroshine, 98 N.M. 742, 652 P.2d 1193 (N.M. 1982); LeClert v. LeClert, 80 N.M. 235, 453 P.2d 755 (1969). See also White v. White, 105 N.M. 800, 734 P.2d 1283 (N.M. Ct. App. 1987) (a court can award a spouse a share of gross retired pay; Mansell may have overruled this decision). In Mattox v. Mattox, 105 N.M. 479, 734 P.2d 259 (N.M. Ct. App. 1987), a case involving tow civilians, the court cited the California Gillmore case approvingly, suggesting that a court can order a member to begin paying the spouse his or her share when the member becomes eligible to retire, even if the member elects to remain in active duty.

New York

Divisible. Pensions in general are divisible; Majauskas v. Majauskas, 61 N.Y.2d 481, 463 N.E.2d 15, 474 N.Y.S.2d 699 (1984). Most lower courts hold that nonvested pensions are divisible; see, e.g., Damiano v. Damiano, 94 A.D.2d 132, 463 N.Y.S.2d 477 (N.Y. App. Div. 1983). Case law seems to treat military retired pay as subject to division; e.g., Lydick v. Lydick, 130 A.D.2d 915, 516 N.Y.S.2d 326 (N.Y. App. Div. 1987); Gannon v. Gannon, 116 A.D.2d 1030, 498 N.Y.S.2d 647 (N.Y. App. Div. 1986). Disability payments are separate property as a matter of law, but a disability pension is marital property to the extent it reflects deferred compensation; West v. West, 101 A.D.2d 834, 475 N.Y.S.2d 493 (N.Y. pp. Div. 1984). In McDermott v. McDermott, 474 N.Y.S.2d 221, 225 (N.Y. Sup. Ct. 1984), a civilian case, the court ruled that it can "limit the employee spouse's choice of pension options or designation of beneficiary where necessary, to preserve the non-employee spouse's interest...."). This suggests that New York courts can order a member to elect SBP protection for a former spouse.

North Carolina

Divisible. N.C. Gen. Stat.  50-20(b) (1988) expressly declares vested military pensions to be marital property. In Seifert v. Seifert, 82 N.C. App. 329, 346 S.E.2d 504 (1986), aff'd on other grounds, 319 N.C. 367, 354 S.E.2d 506 (1987), the court suggested that vesting occurs when officers serve for 20 years but not until enlisted personnel serve for 30 years. But in Milam v. Milam, 92 N.C. App. 105, 373 S.E.2d 459 (1988), the court ruled that a warrant officer's retired pay had "vested" when he reached the 18-year "lock-in" point. See also Lewis v. Lewis, 83 N.C. App. 438, 350 S.E.2d 587 (1986) (a court can award a spouse a share of gross retired pay, but due to the wording of the state statute the amount cannot exceed 50% of the retiree's disposable retired pay; Mansell may have overruled the court's decision in part).

North Dakota

Divisible. Delorey v. Delorey, 357 N.W.2d 488 (N.D. 1984). See also Morales v. Morales, 402 N.W.2d 322 (N.D. 1987) (equitable factors can be considered in dividing military retired pay, so 17.5% award to 17- year spouse is affirmed), and Bullock v. Bullock, 354 N.W.2d 904 (N.D. 1984) (a court can award a spouse a share of gross retired pay; Mansell may have overruled Bullock).

Ohio

Divisible. Anderson v. Anderson, 468 N.E.2d 784, 13 Ohio App. 3d 194 (1984). See also Lemon v. Lemon, 42 Ohio App. 3d 142, 537 N.E.2d 246 (1988) (nonvested pensions are divisible as marital property).

Oklahoma

Divisible. Stokes v. Stokes, 738 P.2d 1346 (Okla. 1987) (based on a statute that became effective on 1 June 1987). Only a pension vested at the time of the divorce, however, is divisible. Messinger v. Messenger, 827 P.2d 865 (Okla. 1992). A former spouse is entitled to retroactive division of retiree's military pension pursuant to their property settlement agreement that provided that the property settlement was subject to modification if the law in effect at the time of their divorce changed to allow such a division at a later date.

Oregon

Divisible. In re Manners, 68 Or. App. 896, 683 P.2d 134 (1984); In re Vinson, 48 Or. App. 283, 616 P.2d 1180 (1980). See also In re Richardson, 307 Or. 370, 769 P.2d 179 (1989) (nonvested pension plans are marital property). The date of separation is the date used for classification as marital property.

Pennsylvania

Divisible. Major v. Major, 359 Pa. Super. 344, 518 A.2d 1267 (1986) (nonvested military retired pay is marital property).

Puerto Rico

Not divisible as marital property. Delucca v. Colon, 118 P.R. Dec. ___ (1987) (case no. 87-JTS-104, Sept. 25, 1987). This case overruled Torres-Reyes v. Robles-Estrada, 115 P.R. Dec. 765 (1984), which had held that military retired pay is divisible. Pensions may be considered, however, in setting child support and alimony obligations.

Rhode Island

Divisible. R.I. Pub. Laws  15-5-16.1 (1988) gives courts very broad powers over the parties' property to effect an equitable distribution. Implied consent by the soldier cannot be used, however, to satisfy the jurisdictional requirements of 10 U.S.C.  1408(c)(4). Flora v. Flora, 18 Fam L. Rptr. (BNA) (R.I. Sup. Ct. Feb. 17 1992).

South Carolina

Divisible. Tiffault v. Tiffault, 401 S.E. 2d 157 (S.C. 1991), holds that vested military retirement benefits constitute an earned property right which, if accrued during the marriage, are subject to equitable distribution. Nonvested military retirement benefits are also subject to equitable division, Ball v. Ball, __ S.C.__, __S.E.2d__ (Ct. App. 1993) (NCO acquired a vested right to participate in a military pension plan when he enlisted in the army; this right, which is more than an expectancy, constitutes property subject to division).

South Dakota

Divisible. Gibson v. Gibson, 437 N.W.2d 170 (S.D. 1989) (the court states that military retired pay is divisible--in this case, it was reserve component retired pay where the member had served 20 years but had not yet reached age 60); Radigan v. Radigan, 17 Fam. L. Rep. (BNA) 1202 (S.D. Sup. Ct. Jan. 23, 1991) (husband must share with ex-wife any increase in his retired benefits that results from his own, post divorce efforts); Hautala v. Hautala, 417 N.W.2d 879 (S.D. 1987) (trial court awarded spouse 42% of military retired pay, and this award was not challenged on appeal); Moller v. Moller, 356 N.W.2d 909 (S.D. 1984) (the court commented approvingly on cases from other states that recognize divisibility but declined to divide retired pay here because a 1977 divorce decree was not appealed until 1983). See generally Caughron v. Caughron, 418 N.W.2d 791 (S.D. 1988) (the present cash value of a nonvested retirement benefit is marital property); Hansen v. Hansen, 273 N.W.2d 749 (S.D. 1979) (vested civilian pension is divisible); Stubbe v. Stubbe, 376 N.W.2d 807 (S.D. 1985) (civilian pension divisible; the court observed that "this pension plan is vested in the sense that it cannot be unilaterally terminated by [the] employer, though actual receipt of benefits is contingent upon [the worker's] survival and no benefits will accrue to the estate prior to retirement").

Tennessee

Divisible. Tenn. Code Ann.  36-4-121(b)(1) (1988) defines all vested pensions as marital property. No reported Tennessee cases specifically concern military pensions.

Texas

Divisible. Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982). See also Grier v. Grier, 731 S.W.2d 936 (Tex. 1987) (a court can award a spouse a share of gross retired pay, but post-divorce pay increases constitute separate property; Mansell may have overruled Grier in part). Pensions need not be vested to be divisible. Ex Parte Burson, 615 S.W.2d 192 (Tex. 1981), held that a court cannot divide VA disability benefits paid in lieu of military retired pay; this ruling is in accord with Mansell.

Utah

Divisible. Greene v. Greene, 751 P.2d 827 (Utah Ct. App. 1988). The case clarifies that non-vested pensions can be divided under Utah law, and in dicta it suggests that only disposable retired pay is divisible, not gross retired pay. But see Maxwell v. Maxwell, 796 P.2d 403 (Utah App. 1990) (because of a stipulation between the parties, the court ordered a military retiree to pay his ex-wife one-half the amount deducted from his retired pay for taxes).

Vermont

Probably divisible. Vt. Stat. Ann. tit. 15,  751 (1988) provides that "The court shall settle the rights of the parties to their property by...equit[able] divi[sion]. All property owed by either or both parties, however and whenever acquired, shall be subject to the jurisdiction of the court. Title to the property . . . shall be immaterial, except where equitable distribution can be made without disturbing separate property."

Virginia

Divisible. Va. Ann. Code  20-107.3 (1988) defines marital property to include all pensions, whether or not vested. See also Mitchell v. Mitchell, 4 Va. App. 113, 355 S.E.2d 18 (1987); Sawyer v. Sawyer, 1 Va. App. 75, 335 S.E.2d 277 (Va. Ct. App. 1985) (these cases hold that military retired pay is subject to equitable division). Owen v. Owen, 419 S.E. 2d 267 (Va. Ct. App. 1992) (property settlement agreement's guarantee/indemnification clause requires the retiree to pay the same amount of support to the spouse despite the retiree beginning to collect VA disability pay -- held not to violate Mansell).

Washington

Divisible. Konzen v. Konzen, 103 Wash. 2d 470, 693 P.2d 97, cert. denied, 473 U.S. 906 (1985); Wilder v. Wilder, 85 Wash. 2d 364, 534 P.2d 1355 (1975) (nonvested pension held to be divisible); Payne v. Payne, 82 Wash. 2d 573, 512 P.2d 736 (1973); In re Smith, 98 Wash. 2d 772, 657 P.2d 1383 (1983).

West Virginia

Divisible. Butcher v. Butcher, 357 S.E.2d 226 (W.Va. 1987) (vested and nonvested military retired pay is marital property subject to equitable distribution, and a court can award a spouse a share of gross retired pay; Mansell may have overruled Butcher in part).

Wisconsin

Divisible. Thorpe v. Thorpe, 123 Wis. 2d 424, 367 N.W.2d 233 (Wis. Ct. App. 1985); Pfeil v. Pfeil, 115 Wis. 2d 502, 341 N.W.2d 699 (Wis. Ct. App. 1983). See also Leighton v. Leighton, 81 Wis. 2d 620, 261 N.W.2d 457 (1978) (nonvested pension held to be divisible) and Rodak v. Rodak, 150 Wis. 2d 624, 442 N.W.2d 489, (Wis. Ct. App. 1989) (portion of civilian pension that was earned before marriage is included in marital property and subject to division).

Wyoming

Divisible. Parker v. Parker, 750 P.2d 1313 (Wyo. 1988) (nonvested military retired pay is marital property). In March 1993, the Wyoming Supreme Court affirmed award of 100 percent of a retiree' military benefits to his former spouse, Forney v. Minard (formerly Forney), __N.W.2d__.

Canal Zone

Divisible. Bodenhorn v. Bodenhorn, 567 F.2d 629 (5th Cir. 1978).

© 1997 Flying Solo™. All rights reserved. Legal Notices



Need more advice or help with this topic? Click here to get information about taking the "Next Step".

Create your personal health plan now and make your wishes known ® using My Final Decisions

© 1986 - 2014 Jan Warner. Please See our Terms of Service and Privacy Policy.
Please feel free to contact us with any comments.

Planning Your Future with 20-20 Vision™

 

 


Today, more than 36 million Americans are age 65 or over. There are more than 22 million family-member caregivers. Then there are the Baby Boomers. All are grappling with the major decisions that accompany the latter stages of life. This book is for them. Written by two experts with decades of experience between them, it is a comprehensive guide that instructs readers about how to create a plan to deal with all aspects of aging, helps maximize options and ensure wishes are carried out.

Learn More
Order the book
Create your personal health plan now and make your wishes known ® using My Final Decisions
Suggested Reading:
Separation and Divorce Guidebook
Click for more ....

FS-Be Wary of Credit Issues with Ex
Click for more ....


FS-Becareful of Bargaining Away Alimony As Child Support
Click for more ....


FS-Lawyer Tells Me to Lie & Pension Double Dipped
Click for more ....


FS-On and Off Again Reconciles Can Create Agreement Disasters
Click for more ....


FS-The Dangers of Family Loans
Click for more ....


FS-Transference of Affection & 10 Tips of Divorce
Click for more ....



Other
Recommended
Resources