Vested Retirement Pay in Indiana
Indiana has used the USFSPA to order retirement pay be divisible between the service member and soon-to-be former military spouse. Indiana, however, is one state that has a vested retirement requirement; a requirement for military retired pay to be vested as of the date the divorce petition in order for the spouse to be entitled to a share.
You might also read about the best state for a military divorce.
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Military Divorce Cases Setting Precedent in Indiana
- 1987 Arthur v. Arthur, 519, Indiana Code § 31-1-11.5-2(d)(3). Vested requirements for division of pay see source
- 1989 Bickel v. Bickel, 533 N.E.2d 593 (Ind. Ct. App.). Courts ruled to use the finalized date of decree to award vested retirement. (ie: pensions vesting before the final hearing belonged in the pot under the joint contribution theory) See discussion here.
- 1990 Kirkman v. Kirkman, 555 N.E.2d 1293. This case concluded that the right to receive retired pay must be vested as of the date the divorce dissolution in order for the spouse to be entitled to a share. It would follow then that if a service member becomes eligible for retirement prior to dissolution (but after initial filing), the court must be notified so that this pension would be considered a marital asset.(In Kirkman, the husband had approximately one and one-half (1 1/2) more years of service to vest his National Guard pension and the trial court did not include the pension in the division of marital benefits.)
- 1998 Dowden v. Allman, 696 N.E.2d 456 (Ind. Ct. App.),
IND. CODE 31-1-11.5-2(d)
Indiana code reads as follows:
The term “property” means all the assets of either party or both parties, including:
- a present right to withdraw pension or retirement benefits;
- the right to receive pension or retirement benefits that are not forfeited upon termination of employment, or that are vested, as that term is defined in § 411 of the Internal Revenue Code, but that are payable after the dissolution of marriage; and
- the right to receive disposable retired or retainer pay, as defined in 10 U.S.C. § 1408(a), acquired during the marriage, that is or may be payable after the dissolution of marriage.
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