Atlanta Divorce Attorney Blog

The Supreme Court of Georgia recently made a ruling that has the potential to affect every member of the military going through a divorce and dividing assets. In Michel v. Michel, the parties were married from September 1995 to February 2002, and then remarried from September 2002 until June 2009. Michel v. Michel, 286 Ga. 892, 893 (2010). In the 2009 divorce action, the wife sought a portion of the husband’s military retirement benefits as equitable division. Id. The Cherokee County trial court denied the wife’s request, finding that the current marriage at issue was only seven years and, pursuant to a code section of the Uniformed Services Former Spouses’ Protection Act, it could not award the wife an equitable portion of these benefits since the marriage was not ten years or more. Id.

The wife appealed, alleging that the trial court erred in ruling that it had no authority to award her a portion of these benefits, and the Supreme Court of Georgia agreed. Id. The Court held that “the Former Spouses’ Protection Act affirmatively grants state courts the power to treat military retirement benefits as marital property that is subject to equitable division upon a divorce.” Id., citing 10 USC §1408 (c)(1); Mansell v. Mansell, 490 U.S. 581, 584 (1989).

In addressing the ten year marriage requirement, the Court held that the requirement “is simply a limitation on the direct payment” of funds from the Federal Government to the former spouse, and “it has no bearing on a state court’s authority to treat military retirement benefits as marital property subject to equitable division, even when a marriage lasted less than ten years.” Id. at 894.

On January 12, 2009, the Supreme Court of Georgia addressed an interesting issue regarding equitable division of marital property in the Georgia divorce case of Smith v. Smith (S08F1706), where the parties had married and divorced each other twice. The parties were first married in 1979 and divorced in 1988. The remarried in 1999 and divorced in 2008. The trial court awarded the Wife, among other property, a portion of the Husband’s military retirement pay, and the Husband appealed that specific award.

The Husband argued that he retired from the military in 1995, between the parties’ first and second marriages and, thus, his military retirement pay was his separate property, not subject to equitable distribution. The Georgia Supreme Court agreed and reversed the judgment of the trial court. The Court held the military retirement pay to be the Husband’s separate property because all contributions to the plan predated the second marriage (i.e. there were no contributions during the second marriage) and, since the Wife was not awarded any portion of this account in the first divorce, that account became the Husband’s separate property at that time.