The military pension of the husband was ordered 25% to the wife and 75% to the husband. It was to be paid if and when the pension was received.

Husband later retired from the military. After 20 years of service, at the rank of Major. Husband would have been eligible to receive retired or retainer pay in the amount of $2,185 per month.

However, at the time of his retirement, the Veteran’s Administration (VA) reviewed his medical records. The VA determined that he was 10% disabled. This determination was based on the husband suffering migraine headaches and having high blood pressure and back and knee problems. As such, the husband elected to receive monthly disability benefits which reduced his monthly retired or retainer pay by 10%, or to $1,966.50 per month.

The wife started receiving her monthly payments. The payments reflected 25% of the husband’s disposable retired or retainer pay of $1,966.50.

The wife filed a petition. The trial court ruled that wife was entitled to an amount worth 25% of the husband’s military pension. As it existed on the date he retired.

The trial court assessed the wife’s damages to date as $14,515.80. Going forward, the husband was ordered to withhold and pay to the wife 22.5% of his monthly retired or retainer pay and 22.5% of his disability pay. Husband appealed.

The Appellate Court held that: (1) husband could not unilaterally diminish former wife’s interest in his pension benefits by waiving pension in favor of disability benefits. (2) trial court could not order the former husband to pay a portion of monthly disability benefits to the former wife. Courts may not treat as divisible military disability pensions. The husband must be able to satisfy his obligation with a source of funds other than his disability benefits.

IRMO Neilsen and Magrini, 341 Ill.App.863

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