3 Lamplighter 1 (1991-1992)

handle is hein.journals/lmplgt3 and id is 1 raw text is: Problems in Apportionment of Military
Pensions in State Divorce Actions
THOMAS W. KELLY, TURNER C. SCOTT AND CHANTEE LEWIS

For better or worse (or for richer or
poorer), state courts around the coun-
try are now routinely carving up vested
and non-vested military pensions in di-
vorce actions involving servicemem-
bers.1 Whether for active duty
personnel with less than twenty years'
service or for fully vested retirees, most
state courts confronted with the issue
have ruled that military pensions are
assets of the marital estate and sub-
ject to the distribution power of the
divorce courts.' This trend is readily
apparent in the approximately twenty-
six states that use equitable distribu-
tion statutes, and is even better es-
tablished in those western states that
use the so-called community prop-
erty approach to the apportionment
of marital assets.3
Indeed, California (which always
somehow seems to be different) now
requires retirees to begin paying any
court-ordered portion of the retirement
to an ex-spouse even if the service-
member elects to continue on active
duty beyond the twentieth year.4 Thus,
a retiree divorced in California can look
forward to paying an ex-spouse a sig-
nificant sum monthly as equitable dis-
tribution even if he or she is still in
uniform.
The purpose of this article is to cri-
tique the methodology and theory
used in these awards and to suggest
a patterned formula for equitable dis-
tribution of military pensions that is fair
to the servicemember, to divorced mil-
itary spouses, and to future spouses.
To illustrate the considerable eco-
nomic consequences of the appor-
tionment problem, the authors have
developed hypotheticals with num-
bers derived from the recent active
duty and retired pay schedules that

show the considerable impact of these
pension distribution orders.
Background
The theory of equitable distribution
used by the majority of states is that
the marital association is conceptually
analogous to a business partnership
in which both spouses contribute their
best efforts for the promotion of the
common venture.5
Thus, upon dissolution, the same
principles apply for the apportionment
of partnership assets as in a business
partnership, i.e., 50 percent to each
partner, unless there is a strong coun-
terveiling reason, such as marital mis-
conduct or physical incapacity, which
would justify a disproportionate split of
the marital estate.
Importantly, most state laws require
that the trial court consider the contri-
bution of a spouse as homemaker as
part of the calculation of the contri-
bution to the marital estate.
Applying this rationale to the military
pension situation, the state courts that
have considered the question apply a
rough formula which generally calls for
the nonmilitary spouse to receive one-
half of the pension, when it is paid,
with the amount reduced to reflect the
number of years that the pensioner
was on active duty and unmarried.
Thus, a spouse married 15 years to a
servicemember divorced in the same
year that he or she retired would re-
ceive one-half of 15/20ths (or 37.5
percent) of the military pension.
This process is theoretically em-
braced and, perhaps, implicitly ap-
proved by the provisions of the
Uniformed Services Former Spouses'
Protection Act6 in which Congress au-

thorized the services To honor state
court orders for payment of up to 50
percent of pensions directly to former
spouses with over ten years of active
duty during the marriage.
The Evaluation of Military
Pensions
Another approach to the problem of
pension apportionment, which is
fraught with danger for the service-
member, is to reduce the projected
lifetime value of the pension to its cur-
rent value by guesstimating life ex-
pectancy from the vital statistics data
published by the Department of La-
bor, and then reducing the pension to
its current value. For example, a
white male lieutenant with nine years
service, married throughout his active
duty service, and divorcing at the age
of 32 would be projected by the life
expectancy tables to have a life ex-
pectancy of 42.2 years. To arrive at a
total number of years for retirement
payments, an actuary would predict a
future inflation rate and apply a so-
(Continued on page 5)
Problems in Apportionment
of Military Pensions
in State Divorce Actions 1
The LAMPlighter Says   2
Chief's Column  ........  3
Reaching Out to Help   4
Tax Consequences of
Desert Storm  ........  5

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?