Military Pension Divided in Divorce Based Upon Vested Benefit

Tennessee case summary on dividing a military pension in divorce.

Karen H. Foster v. Douglas S. Foster

The husband and wife in this Montgomery County, Tennessee, case were divorced in 2006 after 13 years of marriage.  At the time of the divorce, the husband held the rank of Captain in the U.S. Army after 14 years of service.  The parties made a marital dissolution agreement which was incorporated into the divorce decree.

With regard to the husband’s military pension, the agreement specified that the wife would be entitled to 33% of the amount of the pension he would received based upon that rank and length of service.  The agreement specified that this would be the case even if he achieved a higher rank.

In 2015, the husband retired at the rank of Major with 23 years of service.  The wife contacted the Defense Department for direct payment of her share.  The Department responded that it was unable to approve the request because the decree did not include the required information to calculate her portion.

The wife, through her attorney, negotiated with the husband, who allegedly agreed that the amount $465.86 would be acceptable.  The attorney filed a joint petition to modify the decree, but the husband never signed.

The wife then filed a petition to hold the husband in civil contempt.  The wife argued that the husband would have forfeited any retirement pay if he had indeed retired after 14 years.  Therefore, she cited a 2015 pay chart showing that a retired Captain would receive $3844 after 23 years of service.  She requested 33% of that amount, $1281.33 per month.  The trial court agreed and granted her that amount.  The husband then appealed to the Tennessee Court of Appeals.

The appeals court first agreed with the lower court that it would be improper to base the valuation on the earlier unvested pension.

It then turned to assessing the value of the pension.  It cited an earlier case, which noted that this language would include the benefit of the husband’s additional service, but not the increase in rank.  It noted that pension benefits were not available until 20 years of service.  Therefore, the percentage would have to be calculated after the actual retirement.

The husband also argued that the wife should have received only the $465 that she had agreed to before going to court.  He argued that e-mails discussing the agreement were evidence of her intent when originally entering into the agreement.  However, the appeals court held that there was no ambiguity in the original agreement.  For that reason, the additional evidence was unnecessary.

Since the marital termination agreement also provided for attorney fees, the Court of Appeals awarded the wife her fees on appeal.

The Court of Appeals affirmed the lower court’s award, and remanded the case for calculation of attorney fees.

No. M2016-01749-COA-R3-CV (Tenn. Ct. App. Jul. 14, 2017).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Tennessee Divorce Law on Retirement.