Troyan, A Legendary Actuarial Consulting Firm, For Pension Evaluations.

Court Admissible Reports Per Your Jurisdiction at an affordable cost.

We specialize in retirement plan analysis for divorce & economic loss matters

court admitted pension experts, available to testify nationwide.

Pension evaluations prepared for lawyers, mediators, & non-attorney litigants.

We guarantee your qdro gets approved!

headquarters of troyan, inc. Home of accucalc & accuqdro software

Pension Evaluation Lawyer Services Downloads Fee Schedule Pay Online Online Order Form
Pension Evaluation
Basic Pension Principles
Cases
Community Property
Dividing Marital or Community Property
Divorce & Retirement FAQs
Equitable Distribution
Experience with Your Plan
Pension Evaluation Issues
Pensions
Retirement Terms
Social Security Offsets
State Pension Evaluation Alerts
State Pension Evaluation Classification
State Specific Information
State Retirement Plans and Divorce Information
State Listing of Statuses Disallowing Personal Identities In QDROs
State Analysis of IRA Exemptions
Collection Laws and Exemptions by State
Tax Treatment in Pension Evaluation
Distribution from Qualified Plans
Webutation
Click here to learn more about pension evaluations
Get a pension evaluation in less than 1 week Click here to read and print our company forms

Vesting

Listed Chronologically

Alabama

Divisible. Vaughn v. Vaughn, 634 So. 2d 533 (Ala. 1993) (holding that disposable military retirement benefits accumulated during the course of the marriage are divisible as marital property). With Vaughn, the Supreme Court of Alabama overruled Kabaci v. Kabaci, 373 So. 2d 1144 (Ala. Civ. App. 1979), and cases relying on it that are inconsistent with Vaughn. Alabama had previously awarded alimony from military retired pay. See, e.g., Underwood v. Underwood, 491 So. 2d 242 (Ala. Civ. App. 1986) (awarding wife alimony from husband's military disability retired pay); Phillips v. Phillips, 489 So. 2d 592 (Ala. Civ. App. 1986) (wife awarded fifty percent of husband's gross military pay as alimony). Alabama Civil Code permits division of the present value of future or current "vested" pensions, and requires a ten-year marital overlap with the earning of such a pension. See ALA. CODE [section] 30-2-51 (2001).

Alaska

Divisible. Chase v. Chase, 662 P.2d 944 (Alaska 1983) (affirming the superior court's discretionary power to consider military retirement in the distribution of the marital assets); see ALASKA STAT. [section] 25.24.160(a)(4) (2001). Non-vested retirement benefits are divisible. Lang v. Lang, 741 P.2d 649 (Alaska 1987); see also Morlan v. Morlan, 720 P.2d 497 (Alaska 1986) (reversing the trial court's order that a civilian employee must retire to ensure the spouse receives her share of a pension, and holding that the employee should have had the option of continuing to work and periodically paying the spouse the sums she would have received from the retired pay).

Arizona (community property state)

Divisible. DeGryse v. DeGryse, 135 661 P.2d 185 (Ariz. 1983) (holding that the USFSPA resurrects Van Loan v. Van Loan, 569 P.2d 214 (Ariz. 1977), and Neal v. Neal, 570 P.2d 758 (Ariz. 1977) as controlling the issue of military pension division). These cases hold that a miltary pension earned during the marriage is divisible as community property. See ARIZ. REV. STAT [subsection] 25-211,25-318(A) (2001); Kelly v. Kelly, 9 P.3d 1046 (Ariz. 2000); Koelsch v. Koelsch, 713 P.2d 1234 (Ariz. 1986) (holding that if a civilian employee is not eligible to retire at the time of the dissolution of the marriage, the court must order that the spouse begin receiving the awarded share of retired pay when the employee becomes eligible to retire, whether or not the employee does retire at that point); Van Loan v. Van Loan, 569 P.2d 214 (Ariz. 1977) (holding that a non-vested military pension is divisible as community property).

Arkansas

Divisible. Young v. Young, 701 S.W.2d 369 (Ark. 1986); see ARK. CODE ANN. [section] 9-12-315 (2001). Arkansas has a vesting requirement. Durham v. Durham, 708 S.W.2d 618 (Ark. 1986) (holding military retired pay not divisible as marital property when the member had not served twenty years at the time of the divorce because the military pension had not vested. But see Burns v. Burns, 847 S.W.2d 23 (Ark. 1993) (dissenting) (rejecting twenty years of service as a prerequisite to "vesting" of a military pension).

California (community property state)

Divisible. In re Fithian, 517 P.2d 449 (Cal. 1974) (holding that a miltary penison is divisible so long as it vests during the marriage, even though it does not mature until later); see CAL. FAM. CODE [section] 2610 (2001). But see In re Marriage of Brown, 544 P.2d 561 (Cal. 1976) (holding that a husband's contingent pension interest, vested or not vested, is a property interest of the community, overruling In re Fithian on this point).

Jurisdiction. Tucker v. Tucker, 226 Cal. App. 3d 1249 (Cal. Ct. App. 1991) (holding that a non-resident service member did not consent to California's jurisdiction to divide his military pension, even though he consented to the court deciding dissolution, child support, and other property issues); see also Hattis v. Hattis, 242 Cal. Rptr. 410 (Cal. Ct. App. 1987) (requiring more than minimum contacts to establish jurisdiction to divide a military pension).

Colorado

Divisible. In re Marriage of Beckman and Holm, 800 P.2d 1376 (Colo. 1990) (vested and non-vested military retirement benefits pensions are divisible as marital property); see COLO. REV. STAT. [section] 14-10-113 (2001); In re Hunt, 909 P. 2d 525, (Colo. 1996) (holding that post-divorce increases in pay resulting from promotions are marital property subject to division) (approving the use of the following formula to define the marital share: final pay of the member at retirement is multiplied by a percentage defined by fifty percent of a fraction, wherein the numerator equals the number of years of overlap between marriage and service, and the denominator equals the number of years of total service of the member).

Connecticut

Probably Divisible. See CONN. GEN. STAT. [section] 46b-81 (2001) (providing courts with broad discreation to divide property). In Krafick v. Krafick, 663 A.2d 365 (Conn. 1995), the Connecticut Supreme Court affirmed the division of a vested civilian pension as property under Connecticut General Statute section 46b-81. "Although we do not reach non-vested pension benfits here, we note that the same reasoning has been applied to find that such benefits also, as an initial matter, constitute property." Id. at 373. In Rosato v. Rosato, 766 A.2d 429 (Conn. 2000), the supreme court stated, "We recognize that it is an open question whether non-vested pension benefits are subject to distribution in a dissolution order." Id. at 436 n.19. But see Bender v. Bender, 758 A.2d 890 (Conn. App. Ct. 2000) (affirming division of a non-vested civillian pension). "It is important to note ... [that] neither party challenges the authority of the court to award non-vested pension rights." Id. at 893.

Delawarebr> Divisible. Memmolo v. Memmolo, 576 A.2d 181 (Del. 1990) (stating pensions which accrue during a marriage, whether vested or not at the time of divorce, are normally considered marital property); see DEL. CODE ANN. tit. 13, [section] 1513 (2001); Smith v. Smith, 458 A.2d 711 (Del. Fam. Ct. 1983); Donald R.R. v. Barbara S.R., 454 A.2d 1295 (Del. Super. Ct. 1982).

District of Columbia

Divisible. Barbour v. Barbour, 464 A.2d 915 (D.C. 1983) (holding that a vested but non-matured civil service pension is divisible as marital property; suggesting in dicta that non-vested pensions are also divisible); see also D.C. CODE [section] 16-910 (2002).

Florida

Divisible. Pastore v. Pastore, 497 So. 2d 635 (Fla. 1986) (holding vested military retired pay can be divided). But see FLA. STAT. [section] 61.075(3)(a)4 (2001) (allowing courts to divide vested or non-vested pension rights).

Georgia

Probably Divisible. Compare Courtney v. Courtney, 344 S.E.2d 421 (Ga. 1986) (non-vested civilian pensions are divisible), with Stumpf v. Stumpf, 294 S.E.2d 488 (Ga. 1982) (military retired pay may be considered in establishing alimony obligations). See also Hall v. Hall, 51 B.R. 1002 (S.D. Ga. 1985) (Georgia divorce judgment awarding debtor's wife thirty-eight percent of debtor's military retirement, payable directly from the United States to the wife, granted the wife a non-dischargeable property interest in thirty-eight percent of the husband's military retirement); Holler v. Holler, 54 S.E.2d 140 (Ga. 1987) (citing Stumpf and Courtney, the court "[a]ssum[ed] that vested and non-vested military retirement benefits acquired during the marriage are now marital property subject to equitable division," but then decided that military retired pay could not be divided retroactively if not subject to division at the time of the divorce).

Hawaii

Divisible. HAW. REV. STAT. ANN. [subsection] 580-47,510-9 (2001); Cassiday v. Cassiday, 716 P.2d 1133 (Haw. 1986); Linson v. Linson, 618 P.2d 748 (Haw. 1981); see also Jones v. Jones, 780 P.2d 581 (Haw. Ct. App. 1989) (ruling that Mansell's limitation on dividing Veteran's Administration (VA) benefits cannot be circumvented by awarding an offsetting interest in other property; holding that Mansell applies to military disability retired pay and VA benefits); Wallace v. Wallace, 677 P.2d 966 (Haw. Ct. App. 1984) (ordering a Public Health Service employee to pay a share of retired pay upon reaching retirement age, whether he retires at that point or not). Idaho (community property state) Divisible. Griggs v. Griggs, 686 P.2d 68 (Idaho 1984) (overruling Rice v. Rice, 645 P.2d 319 (Idaho 1982); reinstating Ramsey v. Ramsey, 535 P.2d 53 (Idaho 1975) (holding that military retirement pay is divisible as community or separate property, depending on whether the service upon which it was earned occurred before or during the marriage)); see IDAHO CODE [section] 32-906 (2002); Hunt v. Hunt, 43 P. 3d 777 (Idaho 2002) (explaining state formula for dividing retirement benefits); Balderson v. Balderson, 896 P.2d 956 (Idaho 1995) (affirming lower court's decision ordering a service member to pay his spouse her community share of the military pension, even though he had decided to delay retirement); Leatherman v. Leatherman, 833 P.2d 105 (Idaho 1992) (holding that a portion of husband's civil service annuity attributable to years of military service during marriage was divisible military service benefit, and thus subject to statute relating to modification of divorce decrees, to include division of military retirement benefits); Mosier v. Mosier, 830 P.2d 1175 (Idaho 1992); Walborn v. Walborn, 817 P.2d 160 (Idaho 1991); Bewley v. Bewley, 780 P.2d 596 (Idaho Ct. App. 1989) (holding that courts cannot circumvent Mansell's limitation on dividing VA benefits by using an offset against other property).

Illinois

Divisible. In re Brown, 587 N.E.2d 648 (Ill. App. Ct. 1992) (holding that a military pension may be treated as marital property under Illinois law); In re Korper, 475 N.E.2d 1333 (Ill. App. Ct. 1985) (holding that a pension is marital property, even if it is not vested and a spouse is entitled to receive a share upon member eligibility); see 750 ILL. COMP. STAT. ANN. 5/503 (2001).

Indiana

Divisible. IND. CODE [section] 31-1-11.5-2(d)(3) (2001) (providing that property for marital dissolution purposes includes "the right to receive disposable retired pay, as defined in 10 U.S.C. [section] 1408(a) acquired during the marriage, that is or may be payable after the dissolution of the marriage"); see also Kirkman v. Kirkman, 555 N.E.2d 1293 (Ind. 1990) (holding that non-vested national guard pension was properly excluded as marital property); Arthur v. Arthur, 519 N.E.2d 230 (Ind. Ct. App. 1988) (ruling that Indiana Code section 31-1-11.5-2(d)(3) cannot be applied retroactively to allow division of military retired pay in a case filed before the law's effective date--1 September 1985).

Iowa

Divisible. In re Howell, 434 N.W.2d 629 (Iowa 1989) (holding that a military pension in Iowa is marital property and divided as such in a dissolution proceeding); see IOWA CODE ANN. [section] 598.21 (2001). See generally In re Marriage of Anderson, 522 N.W.2d 99 (Iowa Ct. App. 1994) (applying the Supreme Court's reasoning in Rose v. Rose, 481 U.S. 619 (1987), Iowa court held that a disabled veteran whose only source of income is his disability payments must still pay alimony, child support, or both in a divorce).

Kansas

Divisible. KAN. STAT. ANN. [section] 23-201(b) (2001) (defining vested and non-vested military pensions as marital property); In re Harrison, 769 P. 2d 678 (Kan. Ct. App. 1989) (overruling prior case law prohibiting division of military retired pay).

Kentucky

Divisible. Jones v. Jones, 680 S.W.2d 921 (Ky. 1984) (holding that a vested military pension is a divisible marital property interest under Kentucky Revised Statute Annotated section 430.190); Poe v. Poe, 711 S.W.2d 849 (Ky. Ct. App. 1986) (non-vested military retirement benefits are marital property); see KY. REV. STAT. ANN. [section] 403.190 (2001). Louisiana (community property state) Divisible. Swope v. Mitchell, 324 So. 2d 461 (La. 1975) (affirming lower court's division of military retired pay as community property); Little v. Little, 513 So. 2d 464 (La. Ct. App. 1987) (non-vested and non-matured military retired pay is marital property); see LA. CIV. CODE ANN. art. 2336 (2002); Warner v. Warner, 651 So. 2d 1339 (La. 1995) (confirming that the ten-year test of 10 U.S.C. [section] 1408(d)(2) is a prerequisite for direct payment, but not for award of a share of retired pay to a former spouse); Gowins v. Gowins, 466 So. 2d 32 (La. 1985) (soldier's participation in divorce proceedings constituted implied consent for the court to exercise jurisdiction and divide the soldier's military retired pay as marital property); Campbell v. Campbell, 474 So. 2d 1339 (La. Ct. App. 1985) (awarding former spouse a share of disposable retired pay, not gross retired pay, and not VA disability benefits paid in lieu of military retired pay); Jett v. Jett, 449 So. 2d 557 (La. Ct. App. 1984); Rohring v. Rohring, 441 So. 2d 485 (La. Ct. App. 1983).

Maine

Divisible. Lunt v. Lunt, 522 A.2d 1317 (Me. 1987) (affirming a lower court's division of a military pension as property); see also ME. REV. STAT. ANN. tit. 19 [section] 953 (2001). Maryland Divisible. MD. CODE ANN., FAM. LAW. [section] 8-203(b) (2002) (defining military retirement as marital property); Nisos v. Nisos, 483 A.2d 97 (Md. Ct. Spec. App. 1984) (dividing military pension); see Andresen v. Andresen, 564 A.2d 399 (Md. 1989) (holding that decrees silent on division of retired pay cannot be reopened simply on the basis that Congress subsequently enacted the USFSPA); Deering v. Deering, 437 A.2d 883 (Md. 1981); Ohm v. Ohm, 431 A.2d 1371 (Md. 1981) (non-vested pensions are divisible).

Massachusetts

Divisible. MAss. GEN. LAWS ANN. ch. 208, [section] 34 (2002) (defining vested and non-vested pensions as marital property subject to division upon marital dissolution); Andrews v. Andrews, 543 N.E.2d 31 (Mass. Ap. Ct. 1989) (affirming lower court's alimony award from military retired pay, noting that the lower court could have awarded it as property, but did not).

Michigan

Divisible. MICH. COMP. LAWS ANN. [section] 552.18 (2002) (vested or non-vested retirement benefits are part of the marital estate subject to award); see Vander Veen v. Vander Veen, 580 N.W.2d 924 (Mich. Ct. App. 1998); Keen v. Keen, 407 N.W.2d 643 (Mich. Ct. App. 1987); Giesen v. Giesen, 364 N.W. 2d 327 (Mich. Ct. App. 1985); McGinn v. McGinn, 337 N.W.2d 632 (Mich. Ct. App. 1983).

Minnesota

Divisible. MINN. STAT. [section] 518.54 subdiv. 5 (2001) (defining vested or non-vested pensions as marital property); Deliduka v. Deliduka, 347 N.W.2d 52 (Minn. Ct. App. 1984) (holding that a court may award a spouse a share of gross retired pay); see also Janssen v. Janssen, 331 N.W.2d 752 (Minn. 1983) (non-vested pensions divisible). But see Mansell v. Mansell, 490 U.S. 581 (1989) (holding that a court may only award a spouse a share of disposable retired pay).

Mississippi

Divisible. Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994) (adopting equitable distribution as the method of marital asset division); Powers v. Powers, 465 So. 2d 1036 (Miss. 1985) (affirming lower court's award to former spouse of permanent alimony equal to half of the husband's military pension, noting that the USFSPA authorized the lower court to divide it as property); Hemsley v. Hemsley, 639 So. 2d 909 (Miss. 1994) (defining marital property for the purpose of a divorce as "any and all property acquired or accumulated during the marriage"); see also Pierce v. Pierce, 648 So. 2d 523 (Miss. 1995) (noting that military pensions can be divided regardless of fault since, unlike alimony, the pension is property).

Missouri

Divisible. Coates v. Coates, 650 S.W.2d 307 (Mo. Ct. App. 1983) (noting that the USFSPA nullifies McCarty, thus the lower court correctly divided a military pension as property); In re Marriage of Weaver, 606 S.W.2d 243 (Mo. Ct. App. 1980) (holding that military pensions are marital property subject to division upon dissolution); see MO. REV. STAT. [section] 452.330 (2001); Moon v. Moon, 795 S.W.2d 511 (Mo. Ct. App. 1990) (holding that only disposable retired pay is divisible); Fairchild v. Fairchild, 747 S.W.2d 641 (Mo. Ct. App. 1988) (holding non-vested and non-matured military retired pay are marital property).

Montana

Divisible. In re Marriage of Kecskes, 683 P. 2d 478 (Mont. 1984) (holding that military retirement pay shall be included for purposes of establishing the marital estate); In re Marriage of Miller, 609 P.2d 1185 (Mont. 1980) (holding that military retirement pay is divisible as marital property), vacated and remanded sub. nom. Miller v. Miller, 453 U.S. 918 (1981); see MONT. CODE ANN. [section] 40-2-202 (2001).

Nebraska

Divisible. NEB. REV. STAT. ANN. [section] 42-366(8) (2001) (military pensions are part of the marital estate, vested or not, and may be divided as property or alimony); Ray v. Ray, 383 N.W.2d 752 (Neb. 1986); Taylor v. Taylor, 348 N.W.2d 887 (Neb. 1984) (holding non-disability military retirements divisible).

Nevada (community property state)

Divisible. NEV. REV. STATE. ANN. [section] 125.150 (2001); Gemma v. Gemma, 778 P.2d 429 (Nev. 1989) (holding spouses can elect to receive their share when employee spouses become retirement eligible, whether or not retirement occurs at that point); Forrest v. Forrest, 668 P.2d 275 (Nev. 1983) (holding all retirement benefits are divisible community property, whether vested or not, and whether matured or not). But see Tomlinson v. Tomlinson, 729 P.2d 1303 (Nev. 1986) (holding a silent decree res judicata of non-division of retirement benefits). The Nevada Supreme Court has since held, however, that the parties to a divorce remain tenants in common of all assets omitted from the decree, whether by fraud or simple mistake. Williams v. Waldman, 836 P.2d 614 (Nev. 1992); Amie v. Amie, 796 P.2d 233 (Nev. 1990).

New Hampshire

Divisible. N.H. REV. STAT. ANN. [section] 458:16-a (2002) (including vested and non-vested pensions as marital property subject to equitable division); Blanchard v. Blanchard, 578 A.2d 339 (N.H. 1990) (affirming the statutory language).

New Jersey

Divisible. N.J. STAT. ANN. [section] 2A:34-23 (2002) (including pensions in equitable distribution of marital property); Castiglioni v. Castiglioni, 471 A.2d 809 (N.J. 1984) (retroactively dividing a pension under 10 U.S.C. [section] 1408); Whitfield v. Whitfield, 535 A.2d 986 (N.J. Super. Ct. App. Div. 1987) (holding that non-vested military retired pay is marital property); see also Moore v. Moore, 553 A.2d 20 (N.J. 1989) (holding that post-divorce cost-of-living raises in a police pension are divisible).

New Mexico (community property state)

Divisible. N.M. STAT. ANN. [section] 40-3-12 (2001); Mattox v. Mattox, 734 P. 2d 259 (N.M. 1987) (suggesting that a court can order a member to begin paying the spouse his or her share when the member becomes eligible to retire even if the member elects to remain on active duty); Walentowski v. Walentowski, 672 P. 2d 657 (N.M. 1983) (reinstating the law under LeClert v. LeClert, 453 P.2d 755 (N.M. 1969), which held military pensions are divisible as community property); Stroshine v. Stroshine, 652 P.2d 1193 (N.M. 1982) (holding that the disability portion of retired pay is divisible community property because it was earned during coverture); see also White v. White, 734 P.2d 1283 (N.M. Ct. App. 1987) (awarding a share of gross retired pay). But see Mansell v. Mansell, 490 U.S. 581 (1989) (holding that states are limited to dividing disposable retired pay).

New York

Divisible. N.Y. DOM. REL. [section] 236 (2002); Majauskas v. Majauskas, 463 N.E.2d 15 (N.Y. 1984) (dividing a vested but non-mature police pension as marital property); Lydick v. Lydick, 516 N.Y.S.2d 326 (N.Y. App. Div. 1987) (stating that a military pension is marital property); Gannon v. Gannon, 498 N.Y.S.2d 647 (N.Y. App. Div. 1986) (affirming the lower court's division of a military pension as marital property); West v. West, 475 N.Y.S.2d 493 (N.Y. App. Div. 1984) (holding that disability payments are separate property as a matter of law, but a disability pension is marital property to the extent it reflects deferred compensation); Damiano v. Damiano, 463 N.Y.S.2d 477 (N.Y. App. Div. 1983) (dividing non-vested pension).

North Carolina

Divisible. N.C. GEN. STAT. [section] 50-20(b)(1) (2001) (providing that "marital property includes all vested and non-vested pension, retirement, and other deferred compensation rights, and vested and non-vested military pensions eligible under the [USFSPA]"); see also id. [section] 50-20.1 (explaining pension valuation and methods of distribution). North Dakota Divisible. N.D. CENT. CODE [section] 14-05-24 (2002); Bullock v. Bullock, 354 N.W. 2d 904 (N.D. 1984) (holding a non-vested military pension is divisible as a marital asset); Delorey v. Delorey, 357 N.W.2d 488 (N.D. 1984); see also Knoop v. Knoop, 542 N.W.2d 114 (N.D. 1996) (confirming that "disposable retired pay" as defined in 10 U.S.C. [section] 1408 limits what states are authorized to divide as marital property, but holding that the USFSPA does not require the term "retirement pay" to be interpreted as "disposable retired pay"); Morales v. Morales, 402 N.W. 2d 322 (N.D. 1987) (affirming a 17.5% award to a seventeen-year spouse by considering equitable factors).

Ohio

Divisible. OHIO REV. CODE. ANN. [section] 3105.171 (2002); King v. King, 605 N.E.2d 970 (Ohio App. 1992) (holding that the trial court abused its discretion by retaining jurisdiction to divide a military pension that would not vest for nine years when no evidence of value demonstrated); Lemon v. Lemon, 537 N.E.2d 246 (Ohio App. 1988) (holding non-vested pensions are divisible as marital property when some evidence of value demonstrated). But see Ingalls v. Ingalls, 624 N.E.2d 368 (Ohio 1993) (affirming division of non-vested military retirement benefits consistent with agreement of the parties expressed at trial); Cherry v. Figart, 620 N.E.2d 174 (Ohio App. 1993) (distinguishing King by affirming division of non-vested pension when parties had agreed to divide the retirement benefits and suit was brought for enforcement only).

Oklahoma

Divisible. Messinger v. Messinger, 827 P.2d 865 (Okla. 1992) (holding that only a vested pension at the time of the divorce is divisible); Stokes v. Stokes, 738 P.2d 1346 (Okla. 1987) (holding that a military pension may be divided as jointly acquired property). Oregon Divisible. ORG. REV. STAT. [section] 107.105 (2001); In re Richardson, 769 P.2d 179 (Or. 1989) (holding that non-vested pension plans are marital property); In re Manners, 683 P.2d 134 (Or. App. 1984) (holding military pensions divisible).

Pennsylvania

Divisible. 23 PA. CONS. STAT. ANN. [section] 3501 (2002); Major v. Major, 518 A.2d 1267 (Pa. Super. Ct. 1986) (holding non-vested military retired pay is marital property). Puerto Rico Not Divisible as Marital Property. Delucca v. Colon, 119 P.R. Dec. 720 (P.R. 1987) (reestablishing retirement pensions as separate property of the spouses, consistent with its earlier decision in Maldonado v. Superior Court, 100 P.R.R. 369 (P.R. 1972), and overruling Torres v. Robles, 115 P.R. Dec. 765 (P.R. 1984), which held that military retired pay is divisible); see also Carrero v. Santiago, 133 P.R. Dec. 727 (P.R. 1993) (citing Delucca with approval); Benitez Guzman v. Garcia Merced, 126 P.R. Dec. 302 (P.R. 1990).

Rhode Island

Divisible. R.I. GEN. LAWS [section] 15-5-16.1 (2001) (listing broad, statutory factors to effect an equitable distribution of the parties' property); see Flora v. Flora, 603 A.2d 723 (R.I. 1992) (rejecting implied consent to satisfy the jurisdictional requirements of 10 U.S.C. [section] 1408(c)(4)).

South Carolina

Divisible. S.C. CODE ANN. [section] 20-7-472 (2001); Tiffault v. Tiffault, 401 S.E.2d 157 (S.C. 1991) (holding that vested military retirement benefits constitute an earned property right which, if accrued during the marriage, is subject to equitable distribution); Ball v. Ball, 430 S.E.2d 533 (S.C. Ct. App. 1993) (holding non-vested military retirement benefits subject to equitable division). But see Walker v. Walker, 368 S.E.2d 89 (S.C. Ct. App. 1988) (denying wife any portion to military retired pay because she lived with her parents during entire period of husband's naval service and made no homemaker contributions).

South Dakota

Divisible. S.D. CODIFIED LAWS [section] 25-4-44 (2001); Gibson v. Gibson, 437 N.W.2d 170 (S.D. 1989) (holding that military retired pay is divisible); see also Radigan v. Radigan, 465 N.W.2d 483 (S.D. 1991) (holding that a husband must share with ex-wife any increase in his retired benefits that results from his own post-divorce efforts); Caughron v. Caughron, 418 N.W.2d 791 (S.D. 1988) (holding that the present cash value of a non-vested retirement benefit is marital property); Stubbe v. Stubbe, 376 N.W.2d 807 (S.D. 1985) (holding a civilian pension divisible, observing that "this pension plan is vested in the sense that it cannot be unilaterally terminated by [the] employer, though actual receipt of benefits is contingent upon [the worker's] survival and no benefits will accrue to the estate prior to retirement"); Hansen v. Hansen, 273 N.W.2d 749 (S.D. 1979) (holding that a vested civilian pension is divisible).

Tennessee

Divisible. TENN. CODE ANN. [section] 36-4-121 (b)(1)(B) (2001) (defining vested and non-vested pensions as marital property); see also Towner v. Towner, 858 S.W.2d 888 (Tenn. 1993) (affirming trial court's approval of a separation agreement after determining that the agreement divided a non-vested pension as marital property). Note that a disabled veteran may be required to pay alimony, child support, or both in divorce actions, even when his only income is veterans' disability and supplemental security income. See, e.g., Rose v. Rose, 481 U.S. 619 (1987) (upholding the exercise of contempt authority by Tennessee court over veteran who would not pay child support, finding that VA benefits were intended to take care of not just the veteran). Texas (community property state)

Divisible. TEX. FAM. CODE [section] 700.3 (2002); Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982); see also Grier v. Grier, 731 S.W. 2d 931 (Tex. 1987) (awarding spouse a share of gross retired pay, but ruling that post-divorce pay increases constitute separate property). But see Mansell v. Mansell, 490 U.S 581 (1989) (rejecting divisibility of "gross retired pay"); Ex parte Burson, 615 S.W.2d 192 (Tex. 1981) (holding that a court cannot divide VA disability benefits paid in lieu of military retired pay).

Utah

Divisible. Utah Code Ann. [section] 30-3-5 (2001); Greene v. Greene, 751 P.2d 827 (Utah Ct. App. 1988) (holding marital property encompasses military retirement benefits accrued in whole or in part during the marriage); see also Woodward v. Woodward, 656 P.2d 431 (Utah 1982); Maxwell v. Maxwell, 796 P.2d 403 (Utah Ct. App. 1990) (ordering a military retiree to pay his ex-wife one-half the amount he had withheld in excess from his retired pay for taxes).

Vermont

Probably Divisible. See VT. STAT. ANN. tit. 15, [section] 751 (2001) (listing broad factors in settling property division); Milligan v. Milligan, 613 A. 2d 1281 (Vt. 1992) (no general barrier to distributing pensions as marital assets); McDermott v. McDermott, 552 A.2d 786 (Vt. 1988) (holding pension rights acquired by a party to a divorce during the marriage consitute marital property and are subject to equitable distribution along with other assets).

Virginia

Divisible. VA. CODE ANN. [section] 20-107.3 (2002) (defining marital property to include all pensions, whether or not vested); see Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992) (holding a settlement agreement's guarantee/indemnification clause requiring the retiree to pay the same amount of support to the spouse, despite the retiree beginning to collect VA disability pay, does not violate Mansell); Mitchell v. Mitchell, 355 S.E.2d 18 (Va. Ct. App. 1987); Sawyer v. Sawyer, 335 S.E.2d 277 (Va. Ct. App. 1985) (holding that military retired pay is subject to equitable division).

Virgin Islands

Divisible. Fuentes v. Fuentes, 41 V.I. 86 (Terr. Ct. 1999) (holding that a defined benefit retirement plan is marital property to the extent is was earned during the marriage); see also 16 V.I. CODE ANN. [section] 109 (2001).

Washington (community property state)

Divisible. WASH. REV. CODE [section] 26.09.080 (2002); Konzen v. Konzen, 693 P.2d 97 (Wash. 1985) (affirming lower court's division of military pension as property); Wilder v. Wilder, 534 P.2d 1355 (1975) (holding non-vested pension divisible); see In re Smith 657 P.2d 1383 (Wash. 1983); Payne v. Payne, 512 P.2d 736 (Wash. 1973).

West Virginia

Divisible. W. VA. CODE ANN. [section] 48-5-610 (2001); Butcher v. Butcher, 357 S.E.2d 226 (W. Va. 1987) (vested and non-vested military retired pay is marital property subject to equitable distribution).

Wisconsin (community property state)

Divisible. Leighton v. Leighton, 261 N.W.2d 457 (Wis. 1978) (holding disability benefits not divisible); Rodak v. Rodak, 442 N.W.2d 489 (Wis. Ct. App. 1989) (holding that portion of civilian pension earned before marriage is included in marital property and subject to division); Thorpe v. Thorpe, 367 N.W.2d 233 (Wis. Ct. App. 1985) (affirming lower court's retroactive division of military retirement); Pfeil v. Pfeil, 341 N.W.2d 699 (Wis. Ct. App. 1983).

Wyoming

Divisible. WYO. STAT. ANN. [section] 20-2-114 (2001); Parker v. Parker, 750 P. 2d 1313 (Wyo. 1988) (holding that non-vested military retired pay is marital property, and that the ten-year test is a prerequisite for direct payment of military retired pay as property, but not for division of military retired pay as property); see also Forney v. Minard, 849 P.2d 724 (Wyo. 1993) (affirming award of one-hundred percent of "disposable retired pay" to former spouse as property, but acknowledging only fifty percent of this award can be paid directly). This holding is inconsistent with the 1990 amendment to USFSPA, 10 U.S.C. [section] 1408(e)(1), which deems all orders dividing military retired pay as property satisfied once a threshold of fifty percent of the "disposable retired pay" is reached.

> Back to top

Visitor Security About Us Resources Contact Us
The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.