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COA rules on military benefits to former spouses

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Ruling on the issue for the first time, the Indiana Court of Appeals has held that a military spouse may not, by a post-decree waiver of retirement pay in favor of disability benefits or combat-related special compensation, unilaterally and voluntarily reduce the benefits awarded to the former spouse in a dissolution decree.

The issue arose in Victor J. Bandini v. JoAnn M. Bandini,
No. 49A04-1001-DR-26, in which Victor Bandini, who served in the military for more than 20 years, challenged whether the trial court properly concluded that the parties’ settlement agreement, incorporated into the dissolution decree, entitles JoAnn Bandini to 50 percent of his gross military retirement pay, including amounts he waived in order to receive Veterans Administration disability benefits and Combat-Related Special Compensation, which isn’t considered retirement pay.

As a part of their agreement, JoAnn was entitled to half of Victor’s military retirement/pension plan, including survivor benefits. She began receiving her half of his gross benefits, minus the amounts of disability benefits and survivor benefit premiums. That amount was dramatically reduced when Victor elected to receive CRSC, which is nontaxable and not subject to the provisions of the Uniformed Services Former Spouse Protection Act. He received less in benefits each month that were able to go to his ex-wife.

JoAnn demanded payment of the difference between half of Victor’s gross retirement pay and the reduced amount she was receiving due to his taking the CRSC. The trial court found the settlement agreement entitles JoAnn to half of his gross military retirement pay, Victor was in contempt, and that he must pay part of JoAnn’s attorney’s fees.

The appellate court agreed with Victor that the trial court erred in ordering him to pay JoAnn half of his gross retirement pay, which included amounts he had waived in order to receive VA disability benefits and CRSC or deducted from gross retirement pay as survivor benefit plan costs. Citing Mansell v. Mansell, 490 U.S. 581 (1989), and Griffin v. Griffin, 872 N.E.2d 653 (Ind. Ct. App. 2007), the judges held Indiana trial courts lack authority to enforce “even an agreed-upon division of property insofar as it divides amounts of gross military retirement pay that were, previously to the decree, waived to receive disability benefits or elected to be deducted from gross pay as SBP costs to benefit the former spouse.”

The trial court erred because Victor’s election to receive the VA disability benefits and his survivor benefit plan annuity preceded their dissolution decree, wrote Judge Margret Robb. The issue of post-decree waivers of retirement pay wasn’t addressed in Griffin, so for the first time the Court of Appeals adopted the view that forbids a military spouse from using a post-decree waiver of retirement pay to unilaterally diminish the benefits award to the other spouse in the dissolution.

“Thus, while Husband’s election of CRSC was a right provided him by Congress, federal law did not give Husband the authority to simultaneously invoke that right and reduce the amounts received by Wife under the terms of the dissolution decree,” wrote Judge Robb. “Further, Indiana law prohibits Husband’s election of CRSC from defeating the finality of the dissolution decree and the intent of the parties’ settlement agreement incorporated therein.”

The judges remanded for entry of an order that Victor compensate JoAnn, both prospective and as to the existing arrearage, for the decrease in her share of retirement pay caused by his taking of the CRSC. They also affirmed finding him in contempt and the order he pay part of JoAnn’s attorney’s fees.
 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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