THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Steven C.
Allison W. Anders (Erin C. McDaniel; Parks Zeigler, PLLC, on
briefs), for appellant.
J. Jankell (Jankell & Ireland, PC, on brief), for
Present: Judges Petty, Russell and AtLee
WILLIAM G. PETTY JUDGE.
calculating the marital share of husband's military
retirement, the trial court concluded that it must use
husband's years of service as of the date of divorce,
rather than as of the date of actual future retirement. The
trial court believed the change from prior precedent was
necessitated by a change effective December 23, 2016, in 10
U.S.C. § 1408, the Uniformed Services Former
Spouses' Protection Act (USFSPA). In a matter of first
impression for this Court, we agree that the change in the
USFSPA requires a trial court to use the date of divorce as a
hypothetical date of retirement in calculating the martial
share of a military pension.
our resolution of this case, the relevant facts may be
succinctly stated. "When reviewing a trial court's
decision on appeal, we view the evidence in the light most
favorable to the prevailing party, granting it the benefit of
any reasonable inferences." Congdon v. Congdon,
40 Va.App. 255, 258 (2003).
Allen Starr (husband) entered the military in 1997 and
married Margaret Anne Starr (wife) in 2000. At the time of
the parties' divorce in 2018, husband had not retired
from the military. Equitable distribution of husband's
military retired pay is the only issue before this Court on
appeal. Wife argued to the trial court that although Virginia
precedent determines marital share of a defined benefit
retirement plan by looking at the total time in the plan
until retirement, the December 23, 2016 amendment to the
USFSPA now requires the trial court to deem the date of
retirement to be the date of divorce. The trial court agreed.
Husband appeals the use of the date of divorce rather than
the date of actual retirement in determining the marital
share of the retirement subject to equitable distribution.
Virginia, a trial court is required "[u]pon decreeing .
. . a divorce from the bond of matrimony," to equitably
divide marital property, including retirement benefits. Code
§ 20-107.3(A). Where property is classified by the trial
court as "part marital property and part separate
property," the trial court must determine the marital
share of the property. Code § 20-107.3(A)(3). For
pensions and retirement benefits, "'[m]arital
share' means that portion of the total interest, the
right to which was earned during the marriage and before the
last separation of the parties, if at such time or thereafter
at least one of the parties intended that the separation be
permanent." Code § 20-107.3(G)(1). In summary, a
trial court engages in a three-step process to equitably
divide an interest in a defined benefit plan; it determines
the total interest in the plan, determines the marital share
of the total interest, and equitably divides the marital
Total Interest in the Context of Military Retirement
total interest in a military retirement is defined by federal
law for purposes of distribution in a divorce proceeding. In
1981, the United States Supreme Court distinguished military
retirement benefits from other retirement benefits.
McCarty v. McCarty, 453 U.S. 210, 224 (1981). The
Court concluded that "the military retirement system
confers no entitlement to retired pay upon the retired
service member's spouse" and held that state courts
were preempted from distributing military retirement as a
marital asset. Id. Thus, for divorce purposes, the
total interest of a military retirement available for state
court division was zero. The Court concluded that if Congress
decided "that more protection should be afforded a
former spouse of a retired service member," then it was
"for Congress alone" to make a legislative change.
Id. at 235-36.
promptly responded with the Uniformed Services Former
Spouses' Protection Act, which was codified in 10 U.S.C.
§ 1408. "The USFSPA legislatively overruled
McCarty and returned to state courts the power to
treat 'disposable retired or retainer pay,' subject
to 10 U.S.C. § 1408(a)(4), as community ...