Georgia courts can divide military retired pay earned during the marriage, but the decree must set the share, and disability pay stays out of the division.
Federal Law Allows the Division
In Michel v. Michel, 286 Ga. 892 (2010), the Georgia Supreme Court explained that the Uniformed Services Former Spouses’ Protection Act “affirmatively grants state courts the power to treat military retirement benefits as marital property that is subject to equitable division upon a divorce.” The couple married each other twice, and the trial court refused to divide the husband’s Army retirement because the second marriage lasted less than ten years. The Supreme Court reversed: the ten-year rule decides only whether the government pays the former spouse directly, which it also does only up to 50 percent of disposable retired pay.
The Decree Must Set the Share
In Morgan v. Morgan, 288 Ga. 417 (2011), the agreement gave a sailor’s wife “only such portion of such benefits as the Navy requires be paid to her,” but the Navy required nothing and had no authority to set the split. The trial court awarded her half of the marital share and held the husband in contempt. The Supreme Court reversed both, holding the 50 percent award an unauthorized modification, and left her motion to set the decree aside for remand.
Disability Pay
Retired pay a veteran waives to receive VA disability benefits cannot be divided. In Phillips v. Phillips, 347 Ga. App. 524 (2018), a husband retired from the Army with a 100 percent VA disability rating, and the trial court gave the wife a share calculated without any reduction for disability and ordered him to make up any loss from a waiver. The Court of Appeals held that the trial court “overstepped its authority” and vacated the property division.
Our post on alimony versus equitable division explains why a share of retired pay survives remarriage; survivor benefits have their own post.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!