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Division of Military Benefits Reversed in Madison County, Alabama


There are no winners in a divorce. Two people are going to take marital assets and divide them in half. Divorce is stressful When two people get divorced, it is the responsibility of the court to divide up assets such as a marital home and joint bank accounts.

However, the most valuable asset often comes in the form of one spouse’s pension plan or retirement benefits and whether the other person has access to those benefits after divorce.

Recently, in Madison County, in Brown v. Brown, the Court of Civil Appeals addressed the scope of the division of military retirement benefits. The parties were divorced in Madison County on August 23, 2010. According to the circuit court’s judgment, the wife would be entitled to receive 25% of the husband’s “disposable military retirement benefits from the United States Army.”

This agreement made it clear that the wife’s entitlement was without regard to any disability compensation that the husband may receive. The agreement further stated that if the husband did anything to reduce the wife’s share of those retirement benefits, he was responsible for reimbursing her for that loss.

In 2016, the United States Department of Veterans Affairs found the husband to be 100% disabled due to his blindness, PTSD, and major depressive disorder. The VA awarded him $3,394.06 per month. The husband also receives $7,521 per month in gross retirement pay from the Defense Finance and Accounting Service. The wife then filed a petition in the Madison County Circuit Court, alleging that she was entitled to those benefits. After a hearing, the trial court held that the wife was entitled to receive 25% of the husband’s gross monthly pay from DFAS, without regard to his disabled status. The husband appealed.

The Court of Civil Appeals established that there is a difference between VA disability benefits and “temporary disability retired list” (TDRL) benefits. TDRL benefits, per federal law, are not considered marital property. The retirement pay the husband received from DFAS were TDRL benefits. The Court also addressed the parties’ settlement agreement and whether the clause requiring the husband to reimburse the wife for a reduced share in retirement benefits was valid.

According to Howell v. Howell, a Supreme Court case, state courts that enforced such provisions were violating federal law because the division of those benefits (such as TDRL benefits) was not allowed). In this case, the court reversed, as the husband’s TDRL pay was not subject to division for the wife.

The main takeaway here is that whether or not you are entitled to a division of a spouse’s military benefits depends entirely on the type of benefits. Furthermore, even if you have an indemnification clause in your divorce settlement, it may not be enforceable, based on the classification of those benefits.

If you are seeking a divorce, let us help you with your Alabama divorce law and military benefits. If you need a divorce lawyer, contact INGRAM LAW LLC at (205) 335-2640 for help with your divorce case.

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