Is a wife who waived her rights in a separation agreement entitled to receive ex post facto equitable distribution of husband’s military retirement funds in Virginia?
Not in the case of Savedge v. Barbour, No. 2713-09-1, where the Court of Appeals of Virginia, in an unpublished summary affirmance (under Rule 5A:27 of the Rule of the Supreme Court of Virginia of the trial court’s denial of wife’s motion for equitable distribution of her ex-husband’s military pension.
The parties were married for eighteen years and separated for two years before divorcing. During the marriage, the husband served in the military for nearly eighteen years. At the time that the parties signed their separation agreement military retirements were considered a “personal entitlement” not subject to equitable distribution under the U.S. Supreme Court case of McCarty v. McCarty, 453 U.S. 210, 226-27 (1981). Accordingly, in the separation agreement wife waived spousal support, “all interest or dower and any and all claims which [wife] has or might have for alimony and for support and maintenance or otherwise,” and her interest or rights in her husband’s property. The parties’ separation agreement was incorporated into a final decree of divorce. Subsequently, however, the Virginia General Assembly enacted Virginia’s equitable distribution statute, Virginia Code §20-107.3, a statute which allowed individual states to classify military retirements as either marital or separate property, and this enactment was made retroactive through June 25, 1981, the day before the McCarty decision.
Twenty-seven years later, wife filed a motion seeking equitable distribution of her ex-husband’s military retirement pay, arguing that the language in the separation agreement did not constitute a specific waiver of her interest in his military retirement. The Virginia Circuit Court judge, relying on Himes v. Himes, 12 Va. App. at 968, 407 S.E.2d at 696 (1991), held that the release and waiver of property in the separation agreement was sufficient for a waiver of interest in the husband’s retirement.
On appeal, wife argued that her waiver was not effective because it was not specific and because she could not have waived her rights to the military retirement because it was not a divisible asset until after the enactment of the USFSPA. The Virginia Court of Appeals denied wife’s claims, citing Himes: “[T]he fact that the retirement pension payments, at the time the contract was executed, may not have been considered property under McCarty, and therefore within the contemplation of the contract, nonetheless, Mrs. Himes was not entitled to any portion of the retirement benefits when the USFSPA ‘transformed’ his ‘entitlement’ into property because the terms of the contract were sufficiently inclusive to release and surrender claims to personal property ‘hereafter acquired.’ “
While wife asserted that the Court should consider the case of Nicholson v. Nicholson, 21 Va. App. at 238, 463 S.E.2d at 339 (1995) ( rather than Himes, the Court disagreed, distinguishing Nicholson as a case involving the waiver of rights to an annuity under the Foreign Service Act, 22 U.S.C. 3901, et seq. The Nicholson case, the Court stated, involved interpreting and applying a different federal statute that required an express waiver by a spouse. Here, the Court held that Himes controlled the outcome of the motion, because the property rights became vested when the parties signed the separation agreement and incorporated them into the final decree of divorce.
You should consult with your Virginia divorce lawyer concerning your rights in your spouse’s federal employment pension, annuity, or retirement benefits upon divorce.