Military Benefits as Marital Property

The Supreme Court of Georgia recently made a ruling that can affect every member of the military going through a divorce and dividing assets. In Michel v. Michel, the parties were married from September 1995 to February 2002 and then remarried from September 2002 until June 2009. Michel v. Michel, 286 Ga. 892, 893 (2010). In the 2009 divorce action, the wife sought a portion of the husband's military retirement benefits as equitable division. Id. The Cherokee County trial court denied the wife's request, finding that the current marriage at issue was only seven years and, according to a code section of the Uniformed Services Former Spouses' Protection Act, it could not award the wife an equitable portion of these benefits since the marriage was not ten years or more. Id.

The wife appealed, alleging that the trial court erred in ruling that it had no authority to award her a portion of these benefits, and the Supreme Court of Georgia agreed. Id. The Court held that "the 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." Id., citing 10 USC §1408 (c)(1); Mansell v. Mansell, 490 U.S. 581, 584 (1989).

In addressing the ten-year marriage requirement, the Court held that the provision "is simply a limitation on the direct payment" of funds from the Federal Government to the former spouse, and"it has no bearing on a state court's authority to treat military retirement benefits as marital property subject to equitable division, even when a marriage lasted less than ten years." Id. at 894.