Gahagen v Gahagen.

Gahagen v Gahagen, No. 03-1731 2004 WL 1813601 (Iowa Ct App. Aug. 11 2004)

The Iowa Court of Appeals held a military ex-spouse can be ordered, as part of the characteristic division, to pay the other spouse the amount subtracted from military retirement pay for disability benefits.

Here, the Gahagens divorced, and the trial court ordered the ex-husband to pay his former spouse half of his military pension on the subject of retirement. It also ordered him to indemnify her for any reduction in the pension after disability payments are subtracted The ex-husband filed a motion to modify the order, arguing the order was in violation of federal statutory and case law. The trial court denied the motion.

Affirming, the appellate court noted as well-as; not only-but also; not only-but; not alone-but state and federal law consider military pensions to be marital estate and thus divisible as part of dissolution proceedings. The court acknowledged the U predominant Court has interpreted the Uniformed Services Former Spouses' Protection Act, 10 USC ?§ 1408 as explicitly excluding disability payments from the definition of disposable retired pay. However, the court said the issue here is not whether the disability pay can be part of the characteristic divided in a dissolution, on the contrary whether military ex-spouses can be ordered to indemnify nonmilitary ex-spouses for the reduction in their share of the retirement pay, which is an issue of first impression in Iowa.

Noting that several states have upheld language similar to that place here, the court said federal law no other than excludes dollar-for-dollar distribution of the disability benefits. Payments have been allowed when the military spouse is not specifically ordered to pay the "make-up" amount not at home of, or divide in any way, his or her disability benefits, the court determined. Valid orders solitary require the military spouse to pay a locate amount, regardless of any amount that is withdrawed which is warranted because the military spouse's election to waive about of the pension by receiving disability pay is a unilateral and extrajudicial modification of the decree

The court held, however, that the order is merely valid if the military spouse is able to satisfy the indemnification from a source of supplys other than disability benefits. The trial court here appropriately required the military ex-spouse to pay and nothing else if and to the bulk he is able to do in such a manner with a different source of permanent funds the court concluded.

Nonmilitary Ex-Spouse's Counsel

Kathleen Bailey, asylum Island, Ill.

...

Home