TN Wife in 2nd Divorce Gets Military Pension Awarded In 1st Divorce
Tennessee law case summary on military pensions in divorce and family law from the Court of Appeals.
Kitty Fern (Darden) Sartain v. Mitchell Carl Sartain – Tennessee divorce military retirement alimony
The husband and wife were married for 19 years, divorced in 1997, remarried for an additional 13 years, and then divorced a second time. At the time of the divorce, the husband had been retired from the military at the rank of full colonel. The wife had an associate degree, but was not employed. She had worked for less than two years during the second marriage because the husband did not want her to. She had suffered some health problems in the previous six years. The trial court awarded the wife alimony in futuro, alimony in solido, and also awarded her 45% of the husband’s military retirement pay. In the first divorce, the wife had been awarded 36% of his military retirement, but he had not yet retired at that time. In the second divorce, she argued that she should have been awarded the 36% from the time of the retirement until the second divorce, but the trial court refused to do so.
Dissatisfied with the award of 45% of his pension, the husband appealed to the Tennessee Court of Appeals. The wife also argued on appeal that she should have been awarded the 36% of the pension until the time of the divorce, since it was her separate property.
The Court of Appeals first noted that the federal pension is governed by federal law, and that it is treated as marital property under Tennessee law. The trial court had ordered the husband to designate the wife the beneficiary. The key issue was whether he had opted out of those benefits prior to the divorce, since the election was irrevocable under federal law. Since that evidence was not before the court, the court remanded the case for that determination.
As to the 36% awarded in the first divorce, the court noted that this asset was the wife’s separate property at the time of the second marriage. There was no evidence that the wife had relinquished this asset. Therefore, the court held that it had not been waived. Therefore, the Court of Appeals remanded the case to calculate the amount of pension due the wife between retirement and the second divorce.
No. M2012-01603-COA-R3-CV (Tenn. Ct. App. June 27, 2013).
See original opinion for exact language. Legal citations omitted.
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