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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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