Military Retirement in Alabama

Okay, here’s a quick quiz for you. When a couple divorces under Alabama law and the husband has served in the military for all the 13 years of the marriage, how much of his military retirement does federal law mandate that he share with his wife? The answer is zero. Mr. and Mrs. Meyer in Meyer v. Meyer, Case No. 2040486 (Ala. Civ. App. May 12, 2006) could have avoided a lot of anguish and legal bills if they had known that when they parted.
The parties divorced in 1999. After negotiations, they agreed to insert this provision in the decree: “The [wife] is awarded all benefits to which she may on the date of this decree be mandatorily entitled under the Uniformed Services Former Spouses’ Protection Act (‘USFSPA’), which shall be determined based upon the duration of the marriage.” The problem is that the USFSPA makes no mandate. It merely prescribes the method for dividing military retirement and leaves the applicable percentage up to state law.

When Mrs. Meyer attempted to get a division of her ex-husband’s retirement, she found out that the Defense Finance and Accounting Service (DFAS) would not divide it because the divorce decree contained no specific dollar amount or percentage. So she filed a “Petition to Clarify” the divorce judgment. A first post-divorce hearing was essentially aborted after the judge attempted to sign an order after he had resigned, so the parties held a second hearing before a successor trial judge.

After limited testimony, the trial court ordered that the divorce decree be “reformed to reflect the intent of the parties” to award the wife 32 percent of the husband’s military retirement pay. The husband appealed.

The husdand argued that the original language in the decree was unambiguous and that it called for the wife to receive whatever federal law mandated, namely zero. The wife argued that the original language was ambiguous and that the trial court’s order was necessary to effectuate the intent of the parties.

The appeals court hints that it might have affirmed the trial court’s ruling had it been based on a finding that of mutual mistake. But the appeals court said that “neither party argues that paragraph 5 [the military retirement language] was the product of a mutual mistake, or that paragraph 5 should, by reason of a mutual mistake, be reformed or rescinded.”

The appeals court then analyzed whether the original language was ambiguous. Finding that there was neither patent ambiguity (ambiguity on the face of the language) or latent ambiguity (caused by some external fact not apparent from reading the language itself), the appeals court found that the original language was “clear and easily compredensible” and that the trial court had erred by reforming the original military retirement language on the basis of ambiguity. “Paragraph 5 is not ambiguous.” The appeals court reversed the trial court and instructed the trial court to vacate its order.

Lee’s note: Let’s be clear about what this case says and what it doesn’t say. It says that there’s no federally mandated division of military retirement and that a decree ordering an allocation of the federally mandated military retirement is an award of nothing.

The case does not say that the wife was not entitled to share in the husband’s military retirement. To the contrary, Ala. Code §30-2-51 contemplates a division of retirement plans in divorce. Had the wife insisted in the original divorce negotiations, one assumes the court would have ordered a division. Her mistake was in basing the division on a nonexistent federal mandate.

8 comments

  1. Right. The Uniformed Services Former Spouses Protection Act authorizes state courts to divide a servicemember’s disposable retired pay in military divorce cases, according to the state courts’ divorce laws.

    The USFSPA does not provide for any particular division of the servicemember’s military retirement; it does not, for example, require that the former spouse receive 50% of the member’s retired pay, or 50% of the marital share of the military retired pay. Rather, it simply authorizes states to apply their own laws regarding division of property to military retirement in military divorce cases.

  2. Pat Taylor says:

    If the division of military retirement pay is not even addressed as a property, although all other itmes are such as the house, furniture, personal items, debt obligations, etc are, can the final order be reopenend since it was not a part of the original court decision. Not addressed by either party?

  3. Virgil Walden says:

    Hello,

    I am still confused on this military retirement pay and divorce. The lawyer had told me she was entitled to 50%of my disposable pay, but the way some of these read, I hear maybe not. We were married 31 years, in the military 22 years and our marriage overlapped my service by 18 years. I agreed to the 50% because the lawyer said that was the way it was in Alabama. Can someone get the confusion out of this for me? Did I get taken by my own attorney, just because he was ignorant of the law as well? Thanks for listening. Someone can reply to vewalden@aol.com which would be better. Also I am in the process of getting the alimony and child support set up, how do I get the milt retirement set up if I have to. Also What do we need to do to get the benefits, ID card business taken care of. Like I said we were married 31 years, I spent 22 in the military, 18 of which overlapped our marriage, so we are
    31/22/18. What do I need to do concerning her benefits ie medical mainly. I am assuming the 2 children she has at home, one 17 and one 18 will be good until they are 21 or 23 if in college?
    I sure could use some advice. Thank you

    Sincerely;

    Virgil Walden

  4. Lee Borden says:

    You are quite right to be confused. There is no mathematical formula about sharing of military retirement pay. It’s up to the discretion of the trial court. If your lawyer told you that it’s 50 percent, perhaps that’s because your lawyer knows that’s what your trial judge would do.

  5. Daby Brown says:

    I am curious of a website that would contain what average percentage awarded for Retirement Pay is by state. In other words, what percentage can be expected to be awarded in the state of Alabama. Is that percentage based on time in the military while married, or total time married? Of course we know that USFSPA states that the minimum time married while serving active duty is 10 years.

  6. Jo Coleman says:

    Q: Divorced; Military Wife for 26 years: I have an ID card/post priveleges, Tricare Standard; Percentage of Retirement. If I remarry, what of those items do I forfeit? Thanks Jo

  7. Leticia says:

    My husband was married to the most awful woman for 10 years. Every single time he deployed she ran oroung on him and was just not even a good mother. She worked the entire time and never received alimony, How much of his retirement does she get?

  8. Lee Borden says:

    Huh? If he’s already divorced, that’s already been decided. It should be in his divorce decree. If the divorce decree is silent on it, he gets to keep it all.

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