Change in Military Retirement Benefits Examined in Clarksville, Tennessee: Harper v. Harper

May 4, 2022 K.O. Herston 1 Comments

Facts: As a military veteran, Husband was entitled to receive retirement pay. He was also eligible for service-connected disability benefits, which are exempt from taxes. To receive service-connected disability benefits, federal law required Husband to waive an amount of his retired pay equal to the disability benefit.

When Husband and Wife divorced in 2003, Wife was ordered to receive 50% of Husband’s military retired pay benefits. Husband had retired from the military and waived 10% of his military retirement pay so he could receive a corresponding amount of disability. This was not revealed to the trial court, however.

After the divorce, Husband waived more retirement pay to receive additional disability benefits. (The record is unclear, but Wife alleged he sought to waive over 75% of his retirement pay.) Thus, he unilaterally converted marital property into separate property to increase his after-tax income, all at the expense of Wife’s financial and property entitlements.

Several years later, a dispute arose as to Husband’s retirement benefits. The trial court ruled that Wife’s portion of Husband’s military retirement benefits did not include his service-connected disability benefits.

The trial court found that Husband had a 10% disability at the time of the divorce. Thus, 10% of his military retirement benefits was not divisible as marital property. The trial court ruled that any part of the final judgment of divorce that awarded Wife any interest in Husband’s military retirement benefits was void.

Wife appealed.

On Appeal: The Court of Appeals modified the trial court’s judgment.

In Tennessee, a judgment is void if it appears on the face of the record itself that the court lacked subject-matter jurisdiction, the judgment was outside of the pleadings, or the court lacked jurisdiction over the parties.

The Court found that none of those conditions appear on the face of the divorce decree:

The division of military retirement is still valid, but [] the division only extends to “disposable retired pay.” During the course of the divorce and afterward, that amount changed as [Husband] waived retired pay in order to receive disability benefits administered by the VA. So [Wife’s] interest in the military retirement has been impaired in that she now receives less than what she was awarded. The question becomes can anything be done about it?

*     *     *     *     *

Although [Federal caselaw] suggests alternative remedies for nonmilitary spouses given that they can only be granted a contingent interest in military retirement pay, those remedies are no longer available to [Wife] because they only could have been pursued before the entry of the final decree. So the court properly denied [Wife] relief.

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We affirm the denial of [Wife’s] request for relief, but we modify the [trial] court’s order to the extent it holds that the division of [Wife’s] military retirement in the divorce decree is void. The division of military retirement remains valid to the extent of [Husband’s] “disposable retired pay.”

K.O.’s Comment: (1) So how can lawyers protect the spouses of military retirees from the postdivorce conversion of retired pay (which is divisible) to disability benefits (which are not)? The Court says a “potential remedy may be a contractual provision in an MDA or property settlement agreement that requires the military spouse to reimburse or indemnify his or her nonmilitary spouse for any reduction in retirement pay.” The Court then cites Tennessee caselaw that, in dicta, suggests such a remedy may not be permissible.

If anyone has suggestions for protecting nonmilitary spouses, please share them in the comments below.

(2) After what feels like an eternity, I finished reading the 75-page opinion in Gergel v. Gergel. There’s some helpful information in it, but very few lawyers will ever see it because of its interminable length. Practicing attorneys, confronted with filing deadlines, depositions to prepare for, messages to return, etc., lack time to read a 75-page opinion.

Family-law attorneys should read appellate opinions. It improves the practice of family law for the lawyers who read the opinions and the judges before whom they practice. But anything this long cannot realistically be read by most lawyers. There are only so many hours in the day.

Today’s appellate court judges and law clerks should review opinions issued 25 years ago. Somehow, we got it done in 7-14 pages, and most lawyers actually read the opinions. Unfortunately, that is not the case today, and the profession is worse for it.

The Rules of Appellate Procedure impose word count limits on lawyers’ briefs. Is it time for similar limits on opinions?

Harper v. Harper (Tennessee Court of Appeals, Middle Section, April 25, 2022).

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Change in Military Retirement Benefits Examined in Clarksville, Tennessee: Harper v. Harper was last modified: May 4th, 2022 by K.O. Herston

1 people reacted on this

  1. Would this had been prevented if the agreement stated a dollar amount to the spouse vs a %? However by using the specific $ amount the spouse would not be eligible for any cost of living increase to the pension amount.

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