Memphis Injury Lawyer Blog

The Uniformed Services Former Spouse Protection Act governs the division of military pensions. USFSPA is designed to give a division guideline to Memphis and Tennessee Divorce Courts for these pensions in the event of the dissolution of a marriage. The USFSPA does not automatically divide a former spouse's retired pay. Rather, the law permits a state to treat military disposable retired pay as marital property. Tennessee law defines marital property as:

“Marital property” means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. In the case of a complaint for legal separation, the court may make a final disposition of the marital property either at the time of entering an order of legal separation or at the time of entering a final divorce decree, if any. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property. “Marital property” includes income from, and any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage. “Marital property” includes recovery in personal injury, workers' compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property. This property can then be divided in a divorce action. Disposable military retired pay is a service member’s monthly retired pay minus qualified deductions. USFSPA allows the Divorce Court to treat military retired pay just as it would treat a civilian pension plan.

Retired pay may be divided for marital dissolution purposes. Retired pay may also be garnished to satisfy child support and alimony obligations. Whether military retired pay will be treated as marital property and how the service member's military retired pay will be divided between the two parties upon divorce is decided according to Tennessee state law. Tennessee courts have treated a service member's military retired pay as a marital asset which can be divided in a divorce action.

The issue of military retirement and a post-divorce change of benefits was recently dealt with by our Supreme Court. Justice Janice Holder writing for the Court, offered the opinion, in Johnson v. Johnson, that any attempt to reduce or modify military retirement benefits after the Marital Dissolution Agreement is ineffective. In this case the parties’ Marital Dissolution Agreement divided Mr. Johnson’s military retirement benefits to provide one-half of those benefits to Mrs. Johnson. After the Final Decree was entered, Mr. Johnson unilaterally waived a portion of his benefits.

The Court held that when a Marital Dissolution Agreement divides military retirement benefits, the non-military spouse obtains a vested interest in his or her portion of those benefits, as of the date of Court’s decree. Any act of the military spouse that unilaterally decreases the non-military spouse’s vested interest is an impermissible modification of a division of marital property and a violation of the Final Decree of Divorce incorporating the Marital Dissolution Agreement.To see the full opinion: Johnson vs. Johnson

This is a fair result. Had the Court ruled otherwise, one party could destroy the "equitable" nature of a mutually agreed upon settlement of their case. This would be like going back after the conclusion of a baseball game and changing the rules so that the result is the opposite of what really happened. Not only would such a thing be unfair, but it would make it impossible to protect that which you value the most: your future.