Property settlement controls military pension division

Where defendant husband’s military pension does not include disability pay, Howell v. Howell, 137 S. Ct. 1400 (2017), is inapplicable, and the parties’ property settlement controls the pension division.

Howell held that under federal law, a military retiree who opts to take disability pay in lieu of his pension cannot be required to indemnify a spouse for the resulting reduction in the pension benefits.

Background

The parties separated in May 2013. In December 2014, the parties made a property settlement agreement that gave plaintiff wife 41 percent of defendant’s “disposable military retirement pay.” In January 2015, defendant was discharged with a 40 percent disability rating. He was a Chapter 61 medical retiree. Thus, he was receiving disability pay. He is now receiving Concurrent Retirement Disability Pay (CRDP).

In a previous phase of this case, the court noted that CRDP “is considered military retirement pay and not disability pay pursuant to 10 U.S.C. § 1414. CRDP is clearly divisible with a former spouse as military retirement pay.

“Thus, the Court finds that Defendant is not receiving disability pay and Howell does not control this case. Defendant’s CROP is divisible pursuant to the property settlement agreement.”

This conclusion remains unaltered after considering additional information and argument from the parties.

Ruling

“1) Pursuant to 10 U.S.C. § 1414(b)(I), where Mr. Lott [defendant] retired with Chapter 61 status with more than 20 years of service, Defendant is no longer actually receiving a portion of Chapter 61 retired pay, but instead divisible and distributable CRDP under 10 U.S.C. § 1408;

“2) The Court is bound by divisibility measures in the PSA [property settlement agreement] that dictates Plaintiff is entitled to forty­one percent (41%) of Defendant’s disposable military retirement pay, which is in this case remains: total retired pay less only the SBP [Survivor Benefits Coverage] premium attributable to coverage of the former spouse.

“3) Ms. Lott is now entitled to $841.41: forty-one percent (41%) of divisible retirement longevity CRDP, $2,195.00, less SBP coverage of $142.77;

“4) Mr. Lott is to supplement, via check payable to Ms. Lott, any amounts owed to Ms. Lott if not paid directly from DFAS [Defense Finance and Accounting Service];

“5) Any amount of newly allotted divisible CRDP calculated per 10 U.S.C. § 1414(b)(l) in this case is ultimately not governed by Howell;

“6) Defendant owes Plaintiff $11,400.00 in Spousal Support, ordered via its December l, 2016, Final Decree of Divorce, but stays any Contempt Order until either the perfection of, or pendency of, an appeal, and reserves a ruling on any issue of nonpayment pending that stay;

“7) Each party shall bear their own attorney’s costs.”

Lott v. Lott, Record No. CL1403206V-04; CL1703206V-99; CL1903206V-99, Aug. 5, 2022. From the City of Newport News Circuit Court (Mills). VLW 022-8-057, 21 pp.