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Starr v. Starr

Court of Appeals of Virginia

June 11, 2019

STEVEN ALLEN STARR
v.
MARGARET ANNE STARR

          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Steven C. Frucci, Judge

          Allison W. Anders (Erin C. McDaniel; Parks Zeigler, PLLC, on briefs), for appellant.

          Peter J. Jankell (Jankell & Ireland, PC, on brief), for appellee.

          Present: Judges Petty, Russell and AtLee

          OPINION

          WILLIAM G. PETTY JUDGE.

         In 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.

         I. BACKGROUND

         Given 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).

         Steven 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.

         II. ANALYSIS

         In 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 share.

         A. Total Interest in the Context of Military Retirement

         The 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.

         Congress 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. ยง 1408(a)(4), as community ...


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