Court hears dispute over whether certain military retirement pay is divisible in divorce
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Summary
In Clarkson v. Clarkson, the Utah Court of Appeals heard arguments over whether retired pay under chapter 61 can be treated as "disposable retired pay" for division in divorce when the service member also receives disability compensation; the court took the question under advisement.
J. Ed Christiansen, counsel for the appellant (a retired service member), told the Utah Court of Appeals the central question is whether retired pay under chapter 61 is included in the federal definition of "disposable retired pay" and therefore divisible by state courts. The argument focused on the interplay between the Uniformed Services Former Spouse's Protection Act (10 U.S.C. §1448) and later federal provisions that allow concurrent retired and disability payments (CRDP).
Judges pressed counsel on procedural posture and whether the issue should have been raised earlier or handled via a petition to modify the decree. Christiansen said the statutory language and the arithmetic of the CRDP waiver support the position that the portion of chapter 61 pay remaining after any waiver remains divisible. "The remainder is still his remainder," he told the panel.
Deborah Volkley, representing appellee PELI on behalf of Jacqueline Carson, argued the federal statutes and related administrative interpretations distinguish retirement pay from VA disability compensation and that exemptions in federal law control what state courts may divide. Volkley pointed to Department of Defense pay records in the appendix and to administrative decisions she described as persuasive on how CRDP affects divisibility.
Counsel debated an Alaska decision and Department of Defense appeals-board rulings; both sides told the court they relied on statutory language and administrative materials to support competing readings. The panel said it would take the matter under advisement and issue a written opinion.
