Dividing Military Retirement and Disability Pay: A More Equitable Approach

This thesis examines the historical development and current treatment of the divisibility of military retirement pay, disability pensions, and disability retirement pay. The thesis identifies two major unresolved areas concerning the treatment of military retirement pay as property upon divorce. The first area of dispute is whether the present value or the retained jurisdiction approach should be used when dividing military retirement pay pursuant to a divorce. The second area concerns what portion of the military retirement pay should be considered marital property, and when should the former spouse begin receiving his or her share. Finally, the thesis examines whether military disability pay or retired pay waived in order to receive disability pay should be considered marital property upon divorce. The author concludes that the retained jurisdiction approach should be used and describes what portion of the military retirement pay the former spouse should receive and when he or she should receive it. The author also concludes that military disability pay should not be divisible. But, when a service member waives retirement pay to receive disability pay, state courts should be allowed to consider the amount of retirement pay waived as marital property.