holding that where the parties were married for 246 months of Husband’s 360 months of service, the correct computation of Wife’s vested interest was one-half of 246/360th’s of the retirement pay
How later courts described this case
- holding that where the parties were married for 246 months of Husband’s 360 months of service, the correct computation of Wife’s vested interest was one-half of 246/360th’s of the retirement pay
- holding that divorced spouse “owned as her part of the community estate a share in the contingent right to military benefits even though that right had not matured at the time of the divorce”
- applying a fraction to the retirement-benefit’s value as of the date of divorce, the numerator of which represents the number of months the parties were married while the retirement plan was in effect, and the denominator of which represents the total number of months the employee spouse was employed under the plan
- establishing a fraction-based formula for determining the community interest in retirement benefits and the non-employee spouse’s share of that interest measured at the time of retirement
Written by the judges who cited it.
The opinion
YARBROUGH, Justice,
dissenting.
I respectfully dissent.
I find no fault in the position of the majority insofar as they seek to include military retirement benefits, which have accrued during the term of the marriage, in the corpus of the community estate to be divided by the trial court at the time of the divorce. I do feel, however, that good reasons exist for applying this rule prospectively in futuro to those divorce actions filed after the date of this court’s opinion, and I oppose the view and principle of the majority opinion only to the extent that it operates retroactively, and serves to resurrect the problems of a divorce — and its attendant property settlement agreements— of many years standing.
In the case at bar, the property of the parties' was divided pursuant to court decree in 1968. At the time of their divorce in 1968, military retirement benefits payable in the future were assumed to be of a contingent, non-vested character, and therefore outside the jurisdictional power of the court, and accordingly not subject to division by inclusion in court approved and/or drafted property settlements. 1 Notwithstanding that assumption, which we now recognize to have been erroneous, courts were then free to make virtually any distribution of the remaining community and separate property as seemed just and appropriate, in order to do equity among the partners. We cannot know to what extent, *425 if any, the expectation of retirement benefits influenced the various courts in dividing properties among divorcing partners. The bounds of judicial discretion in divorce property settlements have known little appellate limitation or review, and what courts could not do officially, they have often done unofficially. It is more than a “reasonable assumption” that such benefits have been, in many if not most instances, of major consideration to the court in effecting a property settlement between partners. We now modify those carefully drafted settlements en masse, and invite all formerly divorced partners to assert new claims to a part of their former spouse’s military retirement benefits under circumstances which preclude any review or adjustment of either the original property settlement, or of the equities that were developed as a part of that earlier division.
It is probable that many of the men and women, who are now post-divorce military retirees, have adjusted their life style to the income provided by the benefits. Presumably, many have new families, new ties, new obligations and responsibilities, including “second families.” In an effort to provide and plan for such responsibilities, many retirees have made irrevocable elections with respect to dependent, and survivorship benefits, the disruption of which will, in many instances, create hardship if not havoc.
Additionally, and perhaps most regrettably, the majority opinion now authorizes the resurrection of past disputes and personal disappointments — long since laid to rest — as the parties again come to the bar of justice for yet another round of bitter controversy over the question of who is entitled to how much of the retirement benefit — a question which most parties, their lawyers, and all courts, believed to have been answered and finally resolved pursuant to earlier court decrees now many years old.
By the majority’s holding today, we encourage all formerly divorced couples with military benefits to relive the pain of their divorce with attendant social disruptions to the life and life style of both the former partners and their new families. Certainly, a better result would have been achieved by applying this rule prospectively to divorce actions filed in the future.
. This view prevailed until this court’s opinion in 1976 in Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976) when lawyers and trial courts were first authoritatively advised that unmatured retirement benefits were subject to division. The issue regarding division of matured retirement benefits was first addressed in 1970 by this court in Busby v. Busby, 457 S.W.2d 551 (Tex.1970).
The instant case had been decided by the court of civil appeals before this court’s decision in Cearley, supra, and understandably, that court followed the long recognized rule that such benefits were not subject to division.