Division of Military Retirement Pay in a Divorce | Neal v Neal
In Neal v Neal, 117 Ariz. 241, 571 P.2d 1037 (1976), the Court of Appeals reviewed several property division issues. These included whether a court can require one spouse to pay a medical bill if the issue is not specifically raised in the pleadings. It also included determinations relating to military pensions and whether they are considered to be community property in Arizona.
Facts of the Case
Mr. Neal and Mrs. Neal were married in 1952. Husband had joined the Air Force five months before they married. He stayed in service during the marriage. He retired in 1975 with a pension of $400 per month. That same year, the couple divorced.
The trial court awarded spousal support of $1 per month to Wife. It also awarded her half of the monthly pension check, which it found to be community property. It ordered Husband to pay for the amount outstanding for Wife’s hysterectomy operation. From this judgment, Mr. Neal appealed.
The Court of Appeals said that an award of spousal support is left to the discretion of the trial court. It will only be disturbed on appeal if it is clearly unreasonable.
Given the small amount the wife earned, it could not be said to be an unfair or unreasonable burden.
Husband argues on appeal that Wife did not raise the medical bill in the pleadings. He claims that because of that, the court could not include it in the judgment. He cites the case of Johnson v. Johnson, 454 P.2d 590 (1969) in support. That case involved an award to a wife of money she gave her husband before marriage.
The wife did not ask for the money in the pleading. Therefore, the appellate court ruled that the trial court could not order payment by the husband. The Court of Appeals distinguished this case from the Johnson case.
It said that Wife’s pleadings asked for “such further items as the court deemed appropriate.” That language allowed the lower court to include the debt not specifically raised.
Finally, Mr. Neal takes issue with the judge’s determination that his retirement was community property. The Court of Appeals said that retirement pay is part of an employee’s compensation package. How much Mrs. Neal should receive depends on the laws of the state where Mr. Neal worked while married.
When a couple lives in a community property state the entire time a spouse works, all earnings are community property. Therefore, the other spouse gets 50% of the retirement pension.
However, this was not the case here. Husband joined the Air Force before the marriage. Then the couple first lived in Oklahoma which is not a community property state. All retirement pay attributable to the months Husband was single is his separate property.
The pension attributable to the time the couple lived in Arizona is community property. Wife is entitled to 50%. Some of the retirement pension is attributable to the couple’s stay in Oklahoma.
The trial court must determine how much Wife receives of that pension under Oklahoma law.
The Court remanded the case to the trial court to determine how the retirement pension should be divided.