| Military disability retirement pay is not devisable as | | | | to be paid to the former spouse regardless of |
| marital and/or community property. This | | | | any subsequent elections by the former service |
| prohibition can present unique problems in the | | | | member and regardless of any subsequent |
| drafting of marital settlement agreements and/or | | | | change in the source of the payment. |
| separation agreements that involve the distribution | | | | Separation Agreements and property settlement |
| of retirement benefits of military personnel. | | | | agreements involving military personnel, are nearly |
| The risk is that after the execution of a | | | | identical to those entered into by non-military |
| separation agreement that provides for the | | | | couples. However, those differences which do |
| distribution of retirement benefits, a former | | | | exist are critical, and special attention should be |
| spouse will be deprived of his or her share of the | | | | paid to ensure that necessary language is included |
| retired member's retirement benefits because the | | | | to protect both parties to such agreements. It is |
| member subsequently elects to convert taxable | | | | advisable to consult with an attorney who is |
| retirement pay into tax-free disability pay. This | | | | thoroughly familiar with issues relating to the |
| can result in a material deduction of the value of | | | | military pensions and military disability benefits. |
| the former spouse's previously agreed upon | | | | It should be remembered that marital settlement |
| settlement. It is essential that a separation and/or | | | | agreements are contracts, and, as such, are |
| marital property settlement be carefully drafted | | | | largely enforced unless one of the parties can |
| to best protect against such unfair consequences. | | | | subsequently prove that the terms and provisions |
| Clearly, no property settlement agreement form, | | | | set forth therein are manifestly unfair or |
| no matter how well drafted, can prevent a | | | | unconscionable. Where a subsequent challenge to |
| service member from shifting retirement pay to | | | | the enforcement of a divorce settlement |
| disability pay. However, it is essential that the | | | | agreement is made, the burden is on the |
| Agreement clearly indicate that if the member | | | | challenging spouse to demonstrate that its terms |
| does make such an election, the former spouse | | | | and provisions are unconscionable and/or were |
| will be entitled to indemnification. To achieve this, it | | | | the result of duress, overreaching, or other |
| is important that the property settlement | | | | impropriety. |
| agreement explicitly provide for a precise benefit | | | | |