A useful ruling on when military service does and does not prejudice the serviceperson's ability to defend the case is Flynn v. Great Atlantic Management Co., ___ Va. ___, ___ S.E.2d ___, 8 VLW 40 (6/11/93). The holding is that "I was on leave outside the area" just won't do it.
In cases where the servicemember is not a Virginia resident or domiciliary, 10 U.S. Code §1408(a)(4) expressly denies the state courts any jurisdiction to order division of a military pension unless the servicemember has consented to state jurisdiction. Whether a mere general appearance constitutes such consent is a question answered by the Court of Appeals in the unpublished opinion Lenhart v. Burgett, 9 VLW 1231 (3/28/95), which does equate the two. The Court also holds that a wife can't be refused equitable distribution for failing to have asked for it in her pleadings, since equitable distribution is included in the "other and further relief" that she asked for. The trial court did err, however, in making its equitable distribution judgment effective nunc pro tunc to a date on which history shows nothing particular ever happened.
What many suspected is confirmed by the Court of Appeals as it announces that divorce courts have the power to order servicemembers to divide a military pension with a former spouse even if the marriage has not overlapped 10 years of military service. The 10-year requirement of 10 USC §1408 is only a limitation on the military's direct payment of the benefits to the former spouse, and does not operate to deny the Virginia courts the power to order the military person to give up a part of that pension. See Cook v. Cook, ___ Va. App. ___, ___ S.E. 2d ___, 9 VLW 249 (8/2/94).
A U.S. Army member was injured on active duty and retired on disability in 1971. While receiving his disability pension, he married in 1974, and divorced in 1994. In his decree-incorporated separation agreement he gave the wife his disability pension payments by formal assignment. Is there any way he can get out of this now, given the Mansell case, which held that Congress never authorized divorce courts to award military disability payments to spouses? An interesting question, to which the Court of Appeals, perhaps having to take the issues the way the parties raised them, gives about the most peculiar answer you could possibly come up with. Winfree v. Winfree, unpublished, 20 VLW 411 (8/30/05)
Continue reading "PENSIONS — MILITARY DISABILITY — AGREEMENTS — REMEDIES." »
A tax case from the Fourth Circuit may have some far reaching effects in the area of pension division by Virginia courts in divorce cases. Waterman v. Commissioner, ___ F.3d ___, 14 VLW 18 (CA 4, 6/3/99).
Continue reading "PENSIONS — EARLY RETIREMENT DEALS — MILITARY. " »
Gamer v. Gamer, ___ Va. App. ___, 429 S.E.2d 618 (1993), seems to improve on such cases as Aster v. Gross, and Barnes v. Barnes by holding that if adultery had no proved economic impact, the adultery did not take place. Moreover, it shows quite a number of things from the applicable statute, most of which would hardly occur to anyone as proof elements, that your expert must conclude and must testify to if your client is to qualify for any pension award at all. Some of these are present value, present value of one pension compared to present value of the other, separate property and marital property contributions to a buy-in arrangement, exactly how each "contribution" mathematically enhanced the present value, etc.
