Virginia Lawyers

The most complex and dynamic aspect of the military divorce is the treatment of military retired pay (sometimes referred to as the "military pension"). There are a number of fine, scholarly and practical articles dealing with military pension law. 1 They should be consulted in conjunction with the present discussion, which does not purport to be exhaus­tive on the subject. 2 Here, it is the purpose to focus on selected practical and procedural aspects of military pension law which put the family practitioner in the line of fire. 3

SUMMARY HISTORY OF THE LAW OF MILITARY RETIREMENT BENEFITS

Prior to 1982, Virginia, along with most other states, did not regard military retirement benefits as a divisible asset upon divorce. Among the leading exceptions to this general view was California. In re Marriage of Fithian, 10 Cal. 3d 592, 517 P.2d 449 (1974), determined that military retired pay, if vested at the time of divorce was a marital asset subject to division as community property. Later, this same conclusion was reached even if the retirement pay had not yet vested. In re Marriage of Luciano, 104 Cal. App. 3d 956, 164 Cal. Rptr. 93 (Cal. Ct. App. 1980).

The first of the three significant landmarks in the develop­ment of national military pension law occurred in 1981, when the Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). McCarty held that federal law, as then constituted, pre-empted the application of state community property law to military retired pay. The second significant landmark was the Congressional response to McCarty, by the passage of the Uniformed Services Former Spouses' Protection Act, (USFSPA or the Act), 10 U.S.C. § 1408 (1982 ed. and Supp.V). The Act, which has been amended numerous times since its passage, authorized state courts to treat as community or marital property "disposable retired pay". 4 Disposable retired pay specifically exdudes retired pay waived by a retired service member in order to receive veterans' disabil­ity benefits, 5 or in order to receive disability pay under 10 U.S.C. § 1201 et seq. 6 The third landmark was the Supreme Court decision in Mansell v. Mansell. 7 Here, the Court held that the Act does not authorize state courts to treat military • retired pay waived in order to receive veterans's disability benefits as marital or community property subject to division or partition.

· McCarty, USFSPA and Mansell form the foundation upon which state statutory and case is built. The date of the McCarty decision was June 26, 1981. Congress gave USFSPA retroactive effect to the date immediately prior to the deci­sion in McCarty, except in those cases that were final before the decision. 8

This raises the issue of what has been or can be done regarding cases that were open matters after June 25, 1981. In the case of Himes v. Himes, 9 the parties filed for divorce on July 7, 1982. Effective July 1, 1982, the Virginia legisla­ture enacted Code § 20-107.3, authorizing the granting of a monetary award to equitably distribute the marital property which parties to a marriage may have accumulated. In Hilnes the parties were divorced on September 8, 1932, and the court incorporated into the decree a separation agreement dated July 17, 1981, which contained a mutual release of all rights to the property owned or acquired by the other. None of the pleadings nor the PSA mentioned Mr. Himes' military pension. For purposes of this decision the Court accepted, without deciding, that the USFSPA authorizes the courts in Virginia to treat retirement payments received after June 25, 1981, as property subject to classification under Code § 20-107.3.

However, the Court held that "retrospective application of the USFSPA in this case, resulting in the reclassification of Mr. Himes' military pension would impair the parties' con­tractual rights and obligations and disturb those rights which became vested by both the contract and by the final divorce decree."

In the case of Thomas v. Thomas, 10 the parties were sepa­rated in 1992 after a 26-year marriage, and were divorced by a Final Decree of Divorce entered on November 16, 1993, incorporating a Property Settlement Agreement (PSA). The PSA provided inter alia that "...Husband agrees that all of the applicable benefits available to the Wife in accordance with Title X, Former Spouses' Protection, Public Law 97­252, shall be made available to the Wife and that he will do all that is necessary in accordance with the said public law to ensure the receipt of all such benefits by the Wife includ­ing but not limited to the preparation and endorsement by him of any documents required in accordance with the aforesaid public law." The Court held that though it was the drafting attorney's intention to give Mrs. Thomas a portion of Mn Thomas' pension, the language was so ambiguous that it must read against the drafting attorney's client, Ms. Thomas. She was denied recovery. 11 In both of these cases, lack of familiarity with USFSPA sealed the fate of the non­military spouse.

Though Mrs. Hines and Mrs. Thomas wanted the benefits of the Act, they were denied. Others who wanted to avoid the Act, nevertheless, were caught in its web. In re Marriage of Cuddy, Case No. H-54141-1, Cal. Sup. Ct. (1991), is such a case. Here the Cuddys were married on November 7, 1959, and separated on May 20, 1977. Mr. Cuddy was on continu­ous active duty in the United States Navy from 1958 to 1985, when he retired with the rank of captain and began receiv­ing retired pay. On April 30, 1979, an Interlocutory Judgment of Dissolution of marriage was issued in which the Court specifically reserved jurisdiction to "pass upon any community retirement benefits which may have accrued dur­ing the course of the marriage." On December 27, 1979, the Final Judgment of Dissolution was entered. On March 23, 1987, eight years after the final divorce, Mrs. Cuddy filed a Petition and Order to Show Cause seeking _a division of Captain Cuddy's military retired pay according to the reser­vation contained in the Interlocutory Judgment of Dissolution of Marriage. On November 2, 1987, the Superior Court entered an Order dividing the military retired pay and ordering Captain Cuddy to pay Mrs. Cuddy her share until she began receiving it directly from the Navy.

Though logic would dictate that once McCarty was decided in 1981, any preexisting reservation to divide Mr. Cuddy's military pension was nullified. Nevertheless, the Alemeda Superior Court regarded itself as having jurisdiction to do so even though the final divorce predated McCarty.

The rationale used by various courts regarding cases in the early years of the Act tend to denote the preexisting philos­ophy of the courts from which they emanate. If the jurisdic­tion was one in transition from one that is new to dividing pensions as marital or community property, its prior disposi­tion is reflected in its early decisions. On the other hand, if the jurisdiction is one use to the idea of dividing property, it is unflappable in its disposition to do so despite Supreme Court decisions and federal law.

JURISDICTION AND USFSPA

Career military members are unique in our society in that once in the military they are periodically moved according to military requirements. They rarely establish a permanent home after they enter the service and their tenure at a par­ticular site is often unpredictable. USFSPA has recognized these circumstances by providing unique jurisdictional requirements which must be met before a court can divide a military pension. The Act provides that "a court may not treat the disposable retired pay of a member in the manner described in paragraph (1) [permitting division of retired pay] unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court." 12

In Northern Virginia, and to a certain extent in Tidewater it is possible for a military member to reside in a location "other than because of military assignment." A military mem­ber who resides in Virginia, for example, but works in the District of Columbia or Maryland has chosen the Commonwealth for reasons other than because of his mili­tary assignment. Anecdotally, I tried a case in Prince William County where my client, a military member with a domicile and home of record other than Virginia, separated from his wife by leaving the marital residence.in Prince William County and moved into a barracks in the District of Columbia where he was stationed. Upon being served in the District of Columbia with the Prince William County divorce action, a special appearance was filed on the basis that though the Court had jurisdiction over all matters arising from the marriage, it did not have jurisdiction over the mili­tary pension. The Court concluded that when the military member moved his family to Virginia he consented to that jurisdiction for purposes of dividing his military pension, even though he left the jurisdiction at the time of the divorce action.

The decision by the Prince William County Court runs contrary to most reported decisions on the issue. In re Akins, 13 is a Colorado decision which held that state long-arm jurisdiction over a nonresident divorcing service mem­ber based upon marital domicile in the state, does not con­fer authority upon the court to divide a military pension. 14

The second basis for jurisdiction under § 1408(c) (4) is domicile. This means domicile at the commencement of the action. Petters v. Petters 15 Past domicile in the state is insufficient. 16 Domicile, in general, is the place of one's actual resi­dence with the intention to remain there permanently except for temporary absences. 17 In the military, proof of a member's domicile is often burdensome.

Each member is given a "home of record" when he or she enters the service. Most members incorrectly regard this as their domicile. While in the military members may change their home of record designation. In so doing they incor­rectly conclude that they have changed domiciles. Domicile requires substantial evidence to prove the two elements of physical presence and intent to remain.

Many military members seek to establish domicile in Texas or Florida.since neither state has an income tax. As is pointed out by one author, "a close analysis of most of these claims, however, reveals that there are no actions to back them up, such as ownership of property in that jurisdiction, and also [sic] that the member has never really resided in that state in the first place." 18

Domicile of a military member is a wily matter which may prove to be a burdensome pursuit in establishing jurisdic­tion over a military pension. Once established, the practi­tioner is warned that different states continue to treat mili­tary pensions differently. Where you end up may not be where you want to be.

The third basis for jurisdiction in § 1408 (c) (4) of the Act is consent. The rule as applied in Virginia is that if a service member makes a general appearance this is deemed con­sent. In Kramer v. Kramer, 19 Judge Jaraborslcy, in citing Seeley v. Seeley, 20 and In re Marriage of jacobson, 21 denied a motion to dismiss as to consideration of the military pension because the military member made a general appearance and requested affirmative relief. However, other jurisdictions have held to the contrary. 22 See also Gowins v. Gowins. 23

Jurisdictional issues unrelated to USFSPA are frequently confronted in military pension law cases. The recent Virginia case of Campbell v. Allizer, 24 is of note. Here, in 1986, the non­military spouse obtained a divorce by default in Arizona. The divorce decree purported to divide her husband's military pension. At the time of the action the husband was a resident domiciliary of Virginia and did not enter an appearance is Arizona. Upon the husband's retirement in 1991, the wife sought to have her share of the pension paid directly to her from the Defense Finance and Accounting Service (DFAS). Her request was denied by DFAS on the ground that the Arizona court did not have jurisdiction over the member. She then filed a bill for equitable distribution in Virginia. The husband's demurrer to the bill was granted on the ground that under §§ 20-96 and 20-107.3 of the Virginia Code, the action in Virginia had to be brought within two years of her having obtained a final divorce decree in Arizona.

The case of Toomey v. Toomey, 25 presents an interesting con­flict between our Court of Appeals and our Supreme Court. Here the Court of Appeals held that where the wife was an out-of-state resident, and was served with the husband's' Virginia Bill of Complaint there, it amounted to service by publication. Since the trial court did not have in personam jurisdiction over her, the Court reasoned that seven months after the final divorce was granted the wife could come to Virginia to seek division of husband's military pension. The Supreme Court disagreed finding nothing in § 20-107.3 to extend jurisdiction of the trial court past 21 days after the final decree within which it could act, since the case did not involve foreign proceedings covered by § 20-96 of the Virginia Code.

Again, anecdotally, in a recent case, my client, after having been a military wife for 17 years, in 1986 was divorced by her husband pursuant to an Ohio decree. At the time of the decree, she was a resident domiciliary of Virginia and has remained so to the present. Her husband was resident in Maryland when he filed for divorce in Ohio, where he claimed his domicile. At the time of the divorce the wife contested in personam jurisdiction. The court agreed, and an in rem divorce was granted to the husband. The husband later returned to Ohio. In 1997, the wife successfully obtained her share of the marital portion of the husband's military pension by seeking a partition of it in Ohio.

DIVISION OF A MILITARY PENSION IN VIRGINIA

Under Virginia law military pensions may be classified as marital property subject to equitable distribution. 26 However, before a state court can pur­sue division of the pension, it must first determine whether there are any limi­tations imposed by the USFSPA as to what it may divide. There are such limi­tations and they are set out in §1408 (a) (4). That is part of the defini­tion section of the Act which defines "disposable retired pay." The definition as presently stated is as follows:

The term "disposable retired pay" means the total monthly retired pay to which a member is entitled less amounts which (A) are owed by that member to the United States for previous over­payments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court martial or as a result of a waiver of retired pay required by law in order to receive compensation under Title 5 or Title 38; (C) in the case of a member entitled to retired pay under chapter 61 of this title [10 USC §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's dis­ability on the date when the mem­ber was retired (or the date on which the member's name was placed on the temporary disability retired list); or (D) are deducted because of an election under chapter 73 of this title [10 USCS §§ 1431 et seq.] to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this section.

On November 5, 1990, Congress enacted certain amendments to the definition of disposable retired pay. Those amendments became effective for divorces which became final on or after February 4, 1991. Because pre-November 4, 1991, divorce decrees continue to be subject of litigation it is important to understand the old defini­tion of "disposable retired pay" as well as the definition set forth above. The pertinent prior provisions of the defini­tion are as follows:

The term "disposable retired pay" under the prior act means the total monthly retired pay to which a mem­ber is entitled less amounts which (C) are properly withheld for Federal, State, or local income tax purposes, if the

Another limitation on division of military retired pay is the subject of Mansell, supra. Mansell and USFSPA make it patently dear that if a military member waives a portion of his retired pay in order to receive disability pay or veterans benefits in the form of periodic payments, then a court can­not consider such disability pay or VA benefits in dividing retired pay. 27 However, if the parties agree that any such dis­ability pay which reduces retired pay will not be deducted from retired pay in calculating the former spouses share, this will be upheld. 28 This concept is sometimes referred to as "supportifying" the pension division. That is, if the divisible pension is reduced by disability pay, the property settlement agreement provides that the deficiency so caused, neverthe­less, will be paid by the retiree to the former spouse directly. Most courts have refused to "supportify" a diminished pen­sion division to a former spouse by reason of disability pay without an agreement. 29

Pursuant to § 1408(a) (4) (B), the Act exempts from divi­sion by a court the amount of retired pay which must be waived pursuant to the Dual Compensation Act 30 by a retired military member who takes a federal job. The rationale of Mansell and its prodigy would seem to dictate that a court is powerless to supportify a reduction of pension benefits with­out a property settlement agreement authorizing it. Notwithstanding Mansek in a case where there was no prop­erty settlement agreement authorizing such action, the California Court of Appeal upheld the supportification by the trial court of a retired Navy captain when his retired pay was reduced to $52 per month upon his taking a federal jobs 31

A small adjustment has been made to remedy the conse­quences of diminution of retired pay by reason of federal employment. Effective January 1, 1997, where an order dividing military retired pay is entered and registered with the Secretary of Defense for direct payment to a former spouse, upon the member's retirement from civilian federal service, the amount payable to the former spouse can be paid from his civil service retirement if he consents. 32

Virginia's limitation on pension division is set forth in Code § 20-107.3(G) which provides in pertinent part that "...the court shall only direct that payment be made as such benefits are payable," and that "no such payment shall exceed fifty percent of the marital share of the cash benefits actually received by the party against whom such an award is made."

Formerly, Code § 20-107.3(E) (8) (repealed 1988), pro­vided that in determining the amount of the monetary award, the trial court must consider "[t]he present value of pension or retirement benefits, whether vested or non-vested." The case of Zipf v. Zipf, 33 pointed to the futility of the present value calculation requirement unless a portion of the monetary award being made is attributable to the pen­sion. The valuation requirement has been eliminated by the legislature.

The fact that military retired pay is an "expectancy" to a military member, or that the military member and his spouse have not been married for ten years while the member has served are not limitations to division of a military pension in Virginia. 34

MECHANICS OF PENSION DIVISION

Subject to the federal limitations set forth above, the man­ner in which a state court divides a military pension is a state law prerogative. The caveat is that if the court or the parties want the former spouses share of the pension to be paid directly to the former spouse, the state court order must met federal requirements.

The first requirement that must be met before a former spouse is able to receive direct payment from the Department of Defense Finance and Accounting Service (DFAS), is that the parties to the divorce must have been married for ten years which period overlaps a ten year period during which the military member has been in the service. 35 As pointed out in Cook v. Cook, supra at £n.35, the 10-year rule is not a requirement for empowering the state court to divide retired pay. Because of the difficulties former spouses may encounter in enforcing a division order not rec­ognized by DFAS, where the ten year rule is not met, alterna­tive solutions should be explored i.e. release of the military retirement claim for a lump sum or transfer of another asset in lieu of the pension such as the marital residence.

DIVISION OF PENSION IN COURT ORDER OR MARITAL MATH FORMULA

The next technical hurdle is how to express the division of the pension in a court order. Most division orders where the member has not yet retired use what is sometimes referred to as the "marital formula." That is, the years during which the parties were married prior to separation and which over­lap years of service, are divided by the number of years actu­ally served by the member. The number so derived is multi­plied by 50%. The result is a number which constitutes the former spouses percentage of the pension. By example, if the member was on active duty for 20 years at the time of divorce, and of those years he was married for 10 years, the fraction is 10 years of overlapping marriage and service divided by X, the number of years he will actually serve mul­tiplied by 50%. Assume that he serves ten years after his divorce for a total of thirty years. The former spouse would be entitled to one half of one-third of the pension or there may be a basic unfairness in this formula. Assume that the member was a commander at the time of the divorce, but retired as an admiral (upper half) at the 30-year mark. Since the admiral's retired pay is almost double that of the commander, the former spouse is benefiting from achieve­ments of the member after the divorce both as to his promo­tions and the fact of his remaining on active duty. To correct this inequity it would be proper for the former spouse to receive half of the members retired pay, with all statutory increases such as annual COLA adjustments, as would be . paid to a commander with twenty years service at the date the parties separated. In our example, this still may be unfair since the former spouse was only married for 10 years of overlapping service. Therefore, the formula could be modi­fied to the ten years of service.

A third alternative is to fix a sum certain which is to be paid as the former spouses portion of retirement.

Though USFSPA requires that for an order to be recognized it must express the amount of retired pay as a fixed percentage or sum, the proposed regu­lations contained in 32 C.F.R. §63.6 indicate that "hypothetical awards [that is a formula in an order which is issued prior to retirement where the former spouse's portion must be com­puted at retirement] will be computed on the basis of the member's retired pay at the time of retirement...and, if the order also provides for the same percentage of cost-of-living adjust­ments, will be converted to a percent­age of current disposable pay." Prior to the adoption of these regulations, at the time of retirement the court was required to issue an additional order since it was only then that a calculation of a fixed sum or fixed percentage could be made. The temporary regula­tions are presently under review. A final determination is yet to be made on whether DFAS will continue to rec­ognize hypothetical orders without additional legislation.

Present values of pension benefits are usually derived from actuaries, accountants or economists. Financial planners and insurance agents often are capable of making these calculations. As well, there appear to be computer programs which accomplish this goal.

The reserve and national guard pen­sions are usually divided differently than the active duty pension because reservists receive retirement at age sixty based upon the number of retirement points earned during their careers. Therefore, if one were to calculate the marital formula for a reservist's pen­sion, first take the number of points earned by the reservist during the mar­riage to separation and divide it by the number of points earned over the course of the military career. The num­ber so derived is the portion of retire­ment pay earned during the marriage. If this is multiplied by 50%, the marital portion of the retirement is the result.

To calculate reserve retirement pay on a time basis is unfair and is not related to the circumstances. In a recent case a Pennsylvania master called this writer from the bench. When confronted with the alternative methods of calculation which could be applied, he decided to avoid the entire problem an award a fixed sum plus COLA. The case remains unresolved because the COLA aspect of the order will not be recognized by DFAS.

SURVIVOR BENEFIT PLAN (SBP)

Va. Code Ann. § 20-107.3G(2) (1997) provides that

To the extent permitted by federal or other applidable law, the court may order a party to designate a spouse or former spouse as irrevo­cable beneficiary during the life­time of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy. The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.

This section authorized Virginia Courts to divide survivor benefits Which may be available incident to military SBP. Prior to its enactment in 1990, Virginia courts could not divide sur­vivor benefits despite an implementing federal statute. 36

The federal SBP is a subject entitled to a separate analysis which is beyond the scope of the present article. There are highlights to this somewhat complicated program which the practitioner must understand. SBP was enacted in 1972 to provide a monthly pension to surviving spouses of retired military members. 37 In 1982 the coverage expanded and was provided to former spouses. In 1986 authority was granted to state courts to order benefits in favor of former spouses.

SBP provides members of the uniformed services with the opportunity to provide up to 55% of their gross retired pay as an annuity to designated beneficiaries. Courts can order that benefit to a former spouse. As to former spouses, the election or order may be made before the member retires or thereafter. The former spouse must have been married to the member for one year. If the member fails to make the election, the former spouse may do so if correctly done within one year from the final divorce. A certified copy of the order must be forwarded and received by DFAS-CL (Retired Pay Department, Code RO, Defense Finance and Accounting Service, Cleveland, Ohio 44199-8002), within the one year threshold. The monthly premium for maxi¬mum benefits is 6.5% of gross military retired pay. A Virginia court can order that the premiums be paid as it determines. However, if the court orders one party to pay all of the premiums, and the court or the parties want the order to be recognized by DFAS for payment of divided pension benefits, the only way to couch the order is to adjust the percentage of pension benefits provided to the parties so as to approximate the cost of premiums. This is because premiums are collected by reducing the amount of retired pay a participant or his former spouse is paid. The premium is adjusted downward if the election is less than full benefits either by percentage or by a fixed dollar amount.

The former spouse suffers a reduction from 55% of retiree's base pay to 35% of benefits once the former spouse reaches age 62 and is entitled to Social Security benefits based upon the military member's earnings. If a former spouse is under age 55 and remarries, spouse is again widowed or divorced. However, if the divorce is from one who provides SBP benefits incident to the divorce, the former spouse cannot collect on both. Remarriage after 55 does not have an SBP consequence.

A member cannot disenfranchise his spouse or former spouse without his or her consent, unless the former spouse fails to timely file an order or agree­ment providing SBP benefits. If it is not timely filed, the member can pro­vide the benefit to a second spouse, and the former spouse would be disen­franchised.

There is a real question as to whether SBP or insurance serves the best interests of the divorcing military families. An analysis of both should be accomplished before recommending either alternative.

CONCLUSION

The world of military retirement has been, and, no doubt, will continue to change rapidly. The practitioner is compelled to keep pace with those changes to faithfully serve her or his client. To do so is to revisit the issues presented here regularly, as well as pur­sue those issues which were not the scope of this article. Much of the litiga­tion in this area arises from timing and missed details. Meeting those require­ment is the cure.


NOTES

1 See Mark E. Sullivan, Military Pension Division: Crossing the Minefield, 31 Fam. L.Q. 19 (1997); and Michelle Landever Bond & Arthur R. Landever, The Uniformed Services Former Spouses' Protection Act: A Practitioners Guide, 10 Ant Journal Fam. Law 145 (1996).

2 Issues which may be missed include the impli­cation of bankruptcy on military pensions, col­lateral benefits in the divorcing military family such as insurance and medical benefits, tax implications, valuation problems in military pension law.

3 Smith v. Lewis, 530 P.2d 589 (Cal. 1975), is the oft-cited malpractice case predating enactment of the Uniformed Services Former Spouses' Protection Act (TJSFSPA), where counsel did not consider National Guard retirement in a community property state which had histori­cally divided military pensions prior to USFSPA. See also Aloy v. Mash, 696 P. 2d 656 (Cal. 1985) and Bross v. Denny, 791 S.W.2d 416 (Mo.CLApp. 1990). Other areas of potential malpractice will be discussed a pertinent parts of the text

4 10 U.S.C. § 1408 (c) (1) (1997).

5 10 U.S.C. § 1408(a) (4) (B)

6 10 U.S.C. § 1408 (a) (4) (1997)

7 490 U.S. 581, 109 S.CL 2023 (1989).

8 10 U.S.C. § 1408 (c) (1) provides that "...a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the juris­diction of such court." However, this retroac­tive authority did not apply to cases which were already final on June 25, 1981. Therefore, this section also provides: "A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member's spouse or former spouse if a final decree of divorce, dissolution, annul­ment, or legal separation (including a court ordered, ratified, or approved property settle­ment incident to such decree) affecting the member and the member's spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the mem­ber as property of the member and the mem­ber's spouse or former spouse."

9 12 Va. App. 966,969; 407 S.E.2d 694, 693; 1991 Va. App. LEXIS 184 (1991).

10 36 Va. Cir. 427; 1995 Va. (FFCo) Cir. LEXIS 1257 (1995)

11 The Court pointed out that notwithstanding the enactment of USFSPA, its view was that Virginia did not empower its courts to divide military pensions until the 1985 amendments to § 20-107.3 became effective on July 1, 1985.

12 10 U.S.C. § I 908 (c) (4)

13 Colo CiApp, No. 95CA2144, 23 FLR 151 (1/23/97)

14 The Court cited with favor in re Booker, 833 P.2d 734, 18 FLR 1433 (Colo SupCt 1992); Steel v. U.S., 813 F.2d 1545, 13 FLR 1313 (CA 9 1987); and Lewis v. Lewis, 695 ESupp. 1089, 14 FLR 1595 (DC Nev 1988) as standing for the propo­sition that § 1408(c)(4) is a limitation on a court's subject matter jurisdiction over military pensions.

15 560 So.2d 722, 16 FLR 1291 (Miss SupCt 1990). See also In re Bettis, 242 Cal.Rptr. 410, 14 FLR 1113 (CtApp 1987).

16 In re Mortenson, 409 N.W. 2d 20, 13 FLR 1491 (Min CtApp 1987).

17 In re Atkins, supra.

18 Sullivan, supra at p.

19 19 Va. CM 231; 1990 Va. Cu. (FI 7Co) LEXLS 72

20 690 S.W.2d 626 (Tex. App. 3 Dist. 1985).

21 161 CalApp.3d 465, 207 Cal. Rptr. 512 (1984)

22 Tuckerv. Tucker, 277 Cal. Rptr. 403 (Cal. CL App. 1991). Flora v. Flora, 603 A.2d 723 (R.I. 1992); Mortenson v. Mortenson, 409 NW 2d 20, 13 FLR 1491 (Minn CtApp 1987); Hattis v. Hattis, 242 CalRptr 410,14 FLR 1113 (CtApp 1987).

23 466 So.2d 32 (La. 1985).

24 19 Va. App. 553; 453 S.E.2d 570 (1995)

25 251 Va. 168, 465 S.E.2d 838 (1996); 19 Va. App. 756, 454 S.E.2d 735 (Va. App. 1995).

26 Holmes v. Holmes, 7 Va. App. 472, 478, 375 S.E.2d 387, 391 (1988); Sawyer v. Sawyer, 1 Va. App. 75, 78, 335 S.E.2d 277, 279-80 (1985).

27 Lambert v. Lambed, 10 Va_ App. 623, 395 S.E.2d 207, 209. (1990); Keough v. Keough, 1997 Va. App. LEXIS 301 (Record No. 2140-96-4) (Not designated for publication.)

28 Owen v. Owen, 419 S.E.2d 267 (Va.CL App. 1992).

29 Bewley v. Bewley, 116 Idaho 845, 780 P.2d 596 (CtApp. 1989); and Jones v. Jones, _HawApp. , 780 P.2d 581 (1989).

30 BO. 5U.S.C. § 5532

31 In me Marriage of Cuddy, (CalApp No A053945, 1990) (Unpublished)

32 5 U.S.C. 8332(c) (4).

33 8 Va. App. 387; 382 S.E.2d 253 (Va. App. 1989)

34 Cook v. Cook, 18 Va. App. 726; 446 S.E.2d 894 (Va. App. 1994).

35 10 U.S.C. § 1408(d) (2).

36 Havintv. Havird, 1995 Va. App. LEXIS 19 (Va. App. 1923-93-1, Record No. 0954-93-1)

37 10 U.S.C. § 1447-1455