Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Missouri Can Protect “Ex’s” From Having Their Share of a Military Pension Reduced

Last week, we met Karen Morgan, a Jackson County divorcee unhappy because she is not receiving 50% of the military pension her ex-husband accumulated during their marriage that the divorce court awarded to her.

 

When David Morgan retired, he substituted $406/month in disability benefits for an equal amount of retirement pay because the disability payments would be tax-free, while the retiree pay would not. Then, when Karen first submitted her court order to the military to collect her share of the pension, it was rejected because it did not identify either a fixed amount, or a percentage of her former spouse’s “actual disposable military pay”.

 

Karen went back to court, and the judge restated her decree so that Karen would receive 50% of the marital portion of her former spouse’s “disposable military retirement pay”. When Karen presented her new paperwork, she learned that under both federal and Missouri law the $406 that David took in disability instead of retiree pay was not included within disposable retirement pay, and that neither the disability benefits nor the retirement pay they replaced were marital property, and neither were divisible by the court.

 

That’s when Karen took her case to the Court of Appeals. She asserted that the trial court erred when it inserted the word “disposable” in its restated judgment because that allowed a “de facto re-division of marital asset”, which is not permitted once a final judgment is issued in a divorce.

 

The Court of Appeals seemed sympathetic to Karen’s predicament, confirming in its opinion that a court cannot re-divide the marital portion of a retiree’s disposable pension after the decree, yet the retiree can change the amount designated as disposable retiree pay.

 

But, the good vibe ended there because the Appellant Court rejected Karen’s various arguments. It said that her contention that “disposable” should not have been added to the description of the retiree pay and that, essentially, she be given a percentage of David’s total retirement pay, could not be granted. The U.S. Supreme Court had made clear in Mansell v. Mansell that only disposable retirement pay can be considered marital property and, thus, subject to division.

 

The Court also pointed out that the separation agreement prepared by Karen and David, which was incorporated into the original divorce judgment, described the pension to be divided as “disposable military retired pay”. As the court wrote, “Karen bargained for a fraction of an asset with an undetermined value” because David was still in active service and several years away from retirement at the time of the dissolution. Karen had “assumed the risk of a negative fluctuation” in what she might receive, wrote the Court.

 

Finally, the Court turned aside Karen’s assertion that David should not have been allowed to change the amount that would be paid to her by opting for disability benefits over retiree pay. She cited the actions several other states have taken to protect the interests of a former spouse. The Court responded that Missouri, too, has a mechanism for protecting the former mates of military retirees. It was outlined in a prior case settled by the Court of Appeals. In re Marriage of Strassner, the Court held that a trial court “could prohibit a retiree from waiving retirement benefits and require that retiree to indemnify his former spouse for her portion of such waived benefits”.

 

However, the Court was quick to also point out that neither Karen’s settlement agreement nor the decree contained any such prohibition or indemnity clause, so there was nothing for the Court to enforce.

 

End of story, end of case for Karen, but not necessarily for future spouses divorcing a member of the military.