May 15, 2012

2012 Equitable Distribution Case, MacDougall v. MacDougall

MacDougall v. MacDougall  2012 BCBA   85 Bucks Co. L. Rep.

Wife appeals this Court’s Order denying her petition for contempt alleging that Husband violated the terms of an Equitable Distribution Agreement by failing to pay a portion of his pension’s cost of living allowance increase.

Domestic relations – Equitable distribution agreement – Cost of living allowance – Military pension – Petition for contempt – Military benefits – Held, wife’s claim to disposable portion of husband’s retirement account denied.

1. In order for a former spouse to receive military benefits pursuant to the Uniformed Services Former Spouses Protection Act, 10 U.S.C. §1408, the former spouse to whom payments are to be made must have been married to the service member for a period of ten years or more during which time the member performed at least ten years of service.

2. Increases in retirement benefits payable to employee spouses between the date of marital separation and the date the nonparticipant spouse begins receiving benefits which are not attributable to the efforts or the participant spouse may be shared based upon their proportional share of the marital estate.

3. The Defense Finance and Accounting Services (DFAS) is to give due deference to the
state court’s order of equitable distribution and its guide concedes that the court order may direct the DFAS to calculate a hypothetical retired pay amount in effect at the time that the member becomes eligible to receive military retired pay instead of the pay table in effect at the time the court divides military retired pay.

The calculation of the marital portion is controlled by Berrington, and it is for this reason that the Wife’s claim to a percentage of Husband’s total disposable retirement amount should be denied. Berrington’s calculation of marital portion is marked by the date of separation, and the static nature of a military pension thereby renders the hypothetical retirement amount into an accurate calculation if Husband retired at the date of separation. Additionally, the Berrington exception to increases does not apply “because the increases are based on post separation pay raises . . . .” Berrington, at 594. The COLAs from the time of separation until the date of disbursement, when Husband reached pay status, represented pay increases due to Husband’s continued service post separation, and not due to unearned augmentation of the retirement benefit. The DFAS guide to distributing retirement pay is merely instructional, and based on the stipulated facts of this case, this Court rejected Wife’s attempt to re-write the equitable distribution agreement based on a
methodology that is contrary to the intent of both parties.