The military pension of husband was ordered 25% to wife and 75% to 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 husband suffering migraine headaches and having high blood pressure and back and knee problems. As such, husband elected to receive monthly disability benefits which reduced his monthly retired or retainer pay by 10%, or to $1,966.50 per month. 

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

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

The trial court assessed wife’s damages to date as $14,515.80.  Going forward, husband was ordered to withhold and pay to 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 former husband to pay portion of monthly disability benefits to former wife.  Courts may not treat as divisible military disability pensions. 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