Military Divorce Case Draws Line Between Retirement Pay and Disability Pay

Denver, CO (Law Firm Newswire) November 4, 2011 – A Colorado appellate court ruling this fall further clarifies how retirement benefits will be divided in military divorce settlements.

In the case of Poland v. Poland, the husband appealed an order that awarded the wife part of the pay he received from the military after he was placed on the temporary disability retired list. The case took the Colorado Court of Appeals into some new legal territory because of the amount of time served by the husband in the case.

The parties dissolved their marriage in 2005. In their agreement, the husband’s military retirement benefits would be divided upon his retirement because they are marital property. The hitch came when the husband was placed on the Temporary Disability Retired List.

Service members are placed on the TDRL if they are determined to be disabled, but the disability is not yet determined to be permanent. The service member is paid a percentage of his or her base pay while on TDRL and is subject to regular medical evaluations to determine if TDRL is still the right place for them. The pay is determined by one of two criteria (whichever is best for the service member). Either the service member gets 2.5 percent of his or her monthly pay times the number of years in service or the base pay is multiplied by the member’s percentage of disability.

“Since there are different rules safeguarding a military divorce than there are in civilian divorces, these cases often can be more complicated,” said Denver divorce lawyer Bill Thode.

The husband was placed on TDRL four years after the dissolution of the marriage. The wife was awarded a portion of the TDRL pay in accordance with the original decree. But the husband contended that his TDRL pay was not included in the “disposable retired pay” that was established in the original decree.

The case, in many ways, comes down to the difference between “gross military retirement” and “disposable retired pay,” according to court records. In general, the courts have held that disability pay is not included in retirement pay for the purposes of dividing property in a divorce.

Because TDRL is in a grey area between disability and retirement pay, the Poland case forced the court to figure out how much the wife is owed as a percentage.

“This case is an example of why each party in a case needs to be represented by an attorney,” Thode said. “Even when a divorce case looks easy, an issue like TDRL can show up and complicate things. That’s when it pays to be represented.”

The appellate court held that the trial court used the time-rule formula and did not take into account the extent of how his TDRL pay was based on his disability. They should have also looked more closely at the Uniformed Services Former Spouse Protection Act for their decision. Since the appellate court reversed the trial verdict, it must go back to that court to exclude the TDRL pay before dividing the husband’s retirement benefits for his ex’s portion of those monies as stipulated in the divorce decree.

An experienced attorney can help clients with even the most complicated divorce settlements. To contact a Denver divorce attorney, Denver child custody attorney, or Denver family lawyer, visit http://www.thodelaw.com or call (303) 330-0425.

Thode Law Firm, P.C.
201 Steele Street, Suite 201
Denver, CO 80206
Call: (303) 330-0425

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