The recent case of Matthews v. Matthews illustrates an example of when obtaining a formal legal separation would have made sense.

Facts: Husband had a 28-year military career, 19.6 years of which he spent married to Wife. The parties separated in 2003 but did not file for divorce until 2008. The trial court determined that 70% of Husband’s military pension was marital property while 30% (the pre-marital portion) was his separate property. Of the 70% marital portion, Wife was awarded half, or 35% of the total pension benefit. Husband appealed, arguing the trial court erred by including the 5-year period in which the parties were separated. With that period excluded, Husband argued only 43% of the pension was marital and, therefore, Wife’s half would come to 21.5%, not 35%.

The Court of Appeals affirmed the trial court. When the amount of the pension depends on the number of years of service, such as a military pension, and some of those years of service overlap the years of the marriage, the ratio between the number of years of marriage during which the pension accrued and the total number of years of accrual is the most common formula for calculating what proportion of the pension should be considered marital property. Thus, by following this common formula, the trial court did not abuse its discretion.

This is one instance where Husband would have benefited from obtaining a formal legal separation when the parties separated in 2003, after which point the pension accrual would have been his separate property. By failing to do this, Wife was able to obtain half of Husband’s pension that accrued during their separation.

Matthews v. Matthews (Tenn. Ct. App. Apr. 28, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.