Spouse Entitled to Portion of Sevicemembers Pension Despite Disability

Tennessee case summary on military pension in divorce.

Joanna Marie Vlach v. Gregory Alan Vlach

The husband and wife in this Montgomery County, Tennessee, case were married in 1982 and divorced in 2002.  Their divorce judgment incorporated a marital dissolution agreement which divided the husband’s U.S. Army pension.  It provided that the wife would receive 26% of the pension, but with no consideration for disability unless the husband was at least 74% disabled.

When the husband’s retirement approach, the wife contacted the defense department, which advised her that the order contained too many contingencies.  Accordingly, she went back to court for a clarification of the order.  Eventually, the trial court granted the wife 26%, and advised the husband to request a modification if his disability exceeded 74%.

In 2015, the husband returned to court and showed evidence that he had received a disability rating of 100%.  The court declined to make further modification, and the husband appealed to the Tennessee Court of Appeals.

On appeal, the husband argued that the provision of the agreement was intended to limit the wife’s recovery.  Since his disability was now more than 74%, he argued that it should be given effect.

The court first looked at the history of military disability retirement pay.  Essentially, retirees who are disabled can receive a portion of their pension as disability, which is not taxable.  But by making this election, the result is sometimes that the former spouse is deprived of a share of the pension.

The appeals court held that the proper remedy in this case was to award the wife a portion of the disposable retirement pay, an amount which did not take into account the portion designated as disability.  It held that this approach was correct under both the agreement and federal law.

Since the lower court had not computed the husband’s “disposable retirement pay,” and that the award would need to be based upon this amount, the Court of Appeals remanded the case for further findings.

The Court of Appeals also denied the wife’s request for attorney fees on appeal.

For these reasons, the Court of Appeals reversed and remanded the lower court’s judgment.

No. M2015-01569-COA-R3-CV (Tenn. Ct. App. Oct. 27, 2017).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Dividing a Military Pension in Tennessee Divorce.