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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. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  2. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  3. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  4. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  5. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

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