The term “vested pension” refers to retirement pay that begins if employment is terminated. Military retirement pay is vested at what equates to twenty years of service. If a service member resigns prior to this, no retirement pay is received. Most states do NOT require the military pension to be vested at time of divorce. Indiana is an exception.
This requirement makes the state of Indiana an attractive state for divorcing service members to set up their domicile, retire, and divorce. When looking at divorce from a perspective of equitable division, Indiana favors the service member. In most cases, we could assume the service member would want Indiana to have jurisdiction.
Military spouses in troubled marriages should be cautious of service members trying to get stationed in Indiana. Is there an underlying intention to file for divorce?
Spouses do not have to relocate. Refusing to relocate may keep jurisdiction possibilities open for the military spouse. The spouses home of record may also play a role in jurisdiction. See our example where a spouse’s home state (New York) was used for economic and property division, visitation, and child custody, yet the decree was finalized in South Carolina. Lansford v. Lansford.
One thing that makes military divorce unique is the fact that there are often two or more choices of where to file.
Let’s look at some Indiana Military Divorce Cases:
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) A summary of Bickel:
“A Miami County woman is entitled to a portion of her former husband’s military retirement benefits because she helped him further his career, the Indiana Court of Appeals says.
The appeals panel returned the case to Miami Circuit Court with orders to modify the divorce decree so Virginia Lee Bickel will have a share of the benefits being received by Robert Ray Bickel Jr. The amount was left to the discretion of the trial court.
“Because the Bickels were married for most of Robert’s military career and because of the effort expended by Virginia to further Robert’s career, we believe the joint efforts of both spouses were invested so that one of them would earn pension rights,” the appeals court said. “Following the rationale established by the Supreme Court, we must conclude that at least a portion of the military retirement benefits were acquired by their joint efforts and should have been included in the property division,” the court said. […next portion clipped…]
Bickel was enlisted in the Air Force about two years before his 18-year marriage began. Records indicate Virginia Bickel, a housewife, agreed to her husband’s requests to actively participate in military wives’ clubs and social activities to help further his career opportunities. Virginia Bickel filed for divorce just before her husband’s 20th year of service with the Air Force. He retired and began to receive his military retirement benefits between the time the divorce was requested and was finalized.” See source
Of course, the main focus is the fact that the retirement pay began before the divorce was finalized and was thus vested and subject to division. We should take care to note that the pay does not have to be vested at filing. We have also included the extensive language above to show that while Indiana requires vested retirement pay, it is important to recognize that the courts acknowledge the important role of the military spouse. This language might be a useful counter argument in cases where a military spouse faces opinions such as: “[she] did nothing,” “[she] sat at home while I served,” and so forth.
1990 Skirvin v. Skirvin, NO. 53A019005CV194. 560 N.E.2d 1263, (Ruth Ann Skirvin, Appellant/Petitioner, v. Richard N. SKIRVIN, Appellee/Respondent). This vested pension case declined to divide an Indiana policeman’s pension with the former spouse:
The policeman’s pension was to vest only 32 days after the court finalized the decree and was therefore excluded from division as a marital asset. See Source
Here we can see how critical the date of divorce can be when dividing benefits in an Indiana Military divorce where vested pension is a requirement. If you own Military Divorce Tips, you are familiar with the “web” of interconnected military spouse benefits. There are cases where a former military spouse must be receiving at least $1 of the service member’s retirement pay to qualify for health care. There are similar situations concerning the Survivor Benefit Plan (SBP).
Lessons Learned from Indiana
Date of Divorce: Plays a critical role in the division of assets and future spouse benefits
Jurisdiction: Both parties in a troubled marriage should pay attention to jurisdiction rules
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