MILITARY SERVICE BENEFITS UPDATE
© 1998 National Legal Research Group, Inc.
The subject of military service benefits continues to engender a remarkable amount of litigation between divorcing and divorced spouses, thanks to the numerous changes in federal law, the complexity of the governing federal statutes and regulations, and subtleties of state equitable distribution laws. Because of the convoluted changes in applicable federal law, divorced spouses frequently seek to modify final decrees to obtain or alter an award of military retirement benefits. Part I of this article reviews recent cases on the issue of modifying final decrees.
Another large group of disputes grows out of situations where a military service member waives a portion of nondisability retirement benefits in order to receive disability benefits. Part II of this article discusses recent cases on the impact of waiving retirement benefits to receive disability pay or other compensation.
Part III of this article reviews recent decisions on other issues relating to equitable distribution of military retirement benefits, such as jurisdiction, classification, distribution, and "double dipping." Part IV summarizes cases on military service benefits other than retirement pay, including involuntary separation benefits, voluntary separation benefits, and survivor benefits.
I. Retirement Benefits Modification of Final Decrees
Pre-McCarty Divorces. In McCarty v. McCarty, 453 U.S. 210 (1981), the United States Supreme Court held that state courts were barred by federal law from dividing military retirement benefits. Congress wasted no time in enacting the Uniformed Services Former Spouses Protection Act (USFSPA), which permits state courts to divide a service member's disposable retired pay according to the laws of that state. See 10 U.S.C.A. 1408 (West 1983 & Supp. 1998).
Although McCarty had the effect of nullifying state law that permitted the division of military retirement benefits, the decision did not apply retroactively to final decrees that had divided pension benefits in accordance with state law. E.g., In re Marriage of Reinauer, 946 S.W.2d 853 (Tex. App. 1997) (McCarty did not apply retroactively to final decree that divided husband's military pension).
In 1990, Congress amended the USFSPA to provide that a court may not divide military retirement benefits in any case where the parties' final decree was issued before the date of the McCarty decision (June 26, 1981) and where the decree "did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse." See 10 U.S.C.A. 1408(c)(1) (West Supp. 1998).
Nearly two decades after McCarty, some people who were divorced before McCartyare still fighting over the right to the military retirement benefits that accrued during their marriage.
But recent cases agree that under the plain language and intent of the 1990 amendment, state courts may not now distribute or divide military retirement benefits after a pre-McCarty divorce which did not make reference to military retirement pay, even if state law itself would permit the division. See, e.g., Delrie v. Harris, 962 F. Supp. 931 (W.D. La. 1997) (former wife precluded from seeking to partition military retirement benefits which 1963 divorce decree did not mention); Schexnayder v. Holbert, 714 So. 2d 680 (La. 1998) (former wife precluded from seeking a partition of former husband's military retirement benefits, where 1974 divorce decree did not treat or reserve jurisdiction to treat issue of military retirement benefits); Hennessy v. Duryea, ___ N.M. ___, 955 P.2d 683 (Ct. App. 1998) (federal law precluded former wife from being awarded a share of former husband's military retirement benefits, where parties' 1973 divorce decree did not divide benefits or reserve jurisdiction to do so).
Decrees in the Gap Between McCarty and the USFSPA. In the time period between June 26, 1981, when McCarty was decided, and February 1, 1983, when the USFSPA became law, federal law did not permit the distribution of military retirement benefits. Therefore, property settlements executed during this period generally did not divide military retirement benefits as marital or community property. However, when the USFSPA granted authority to state courts to distribute disposable retired pay as marital or community property, it made that grant of authority retroactive to June 25, 1981, the day before the McCarty decision. Therefore, some state courts have been willing to reopen and modify decrees which did not distribute military pensions but which became final during the interim period.
A recent example is Carney v. Carney, ___ A.D.2d ___, 669 N.Y.S.2d 577 (1998). The husband retired from the Coast Guard in 1993, 11 years after the parties' divorce. The wife then commenced a proceeding to modify their 1982 divorce decree so as to give her a share of the husband's military pension. The trial court awarded her 20% of the husband's military retirement benefits, retroactive to the date of the original judgment of divorce. The New York appellate court affirmed, holding that the nondisability portion of the husband's pension was available for equitable distribution. Other state courts, however, have found it impermissible under state law to reconsider decrees which failed to distribute military retirement benefits because of McCarty. For example, in Toone v. Toone, 952 P.2d 112 (Utah Ct. App. 1998), the Utah Court of Appeals held that the passage of the USFSPA did not constitute a substantial change sufficient to justify reopening the parties' 1983 divorce decree, despite the wife's claim that McCarty precluded her from litigating the retirement issue at the parties' divorce trial. As additional support for its holding, the court pointed out that the USFSPA actually took effect early in 1983, before the parties' divorce was finalized. Accordingly, the court decided that res judicata applied and barred the wife's attempt to modify the decree.
Post-USFSPA Decrees That Did Not Mention Military Retirement Benefits. Even in the years following the enactment of the USFSPA, some spouses of military service members have not bargained for or received a share of military retirement benefits in their divorce proceedings. In cases where these former spouses have sought to reopen a divorce decree to obtain a share of military retirement benefits, they have not fared very well. See, e.g., DePalantino v. DePalantino, 139 N.H. 522, 658 A.2d 1207 (1995) (error to reopen 1989 divorce decree for distribution of military pension, where both parties knew about pension at time of divorce); Martin v. Martin, 656 So. 2d 846 (Ala. Civ. App. 1995) (trial court lacked jurisdiction to modify 1990 divorce decree which did not mention military retirement benefits, despite intervening change in law permitting division of such benefits).
A recent example is In re Marriage of Campbell, 151 Or. App. 334, 948 P.2d 765 (1997). The wife succeeded in convincing a trial court to amend the parties' divorce judgment on the ground that the judgment, by inadvertence or omission, did not award her a one-half interest in the husband's military pension. The Oregon appeals court held that the trial court lacked inherent authority to modify the judgment given the absence of extraordinary circumstances such as extrinsic fraud, duress, breach of fiduciary duty, or gross inequity. The husband's military pension was considered at the time of the original judgment in the context of making a spousal support award, the court also noted.
Other Final Decrees. Mistakes and unforeseen circumstances have led many former spouses to attempt to modify a final decree involving military retirement benefits. In recent cases, these attempts have generally not succeeded. See, e.g., Cox v. Cox, 707 A.2d 1297 (D.C. 1998); Thomas v. Abel, 688 N.E.2d 197 (Ind. Ct. App. 1997).
In Cox v. Cox, the District of Columbia Court of Appeals held that a wife's unawareness of how to secure her share of the husband's military pension benefits did not warrant modification of the parties' divorce decree more than one year after it was entered. The parties' separation agreement provided that the wife could exercise her right in the husband's military pay as provided by regulations, but it did not specify an amount, expressed in dollars or as a percentage of disposable retired pay, as required by the pertinent regulations. That oversight was simply a mistake and could not be the basis for amending the divorce decree more than one year after its entry, the court held.
In Thomas v. Abel, the Indiana Court of Appeals held that a husband's obligation under a separation agreement to pay the wife one-third of his monthly military retirement pay when he attained the age of 60 was not modifiable based upon a change of circumstances. After examining the specific language of the agreement, the court decided that the one-third payment constituted maintenance rather than a property settlement, but that the obligation was nonmodifiable under Indiana law because it originated in a settlement agreement.
II. Retirement Benefits Conversion to Disability Benefits or Other Compensation
Background. Disabled veterans may receive disability benefits only to the extent that they waive a corresponding amount of military retirement pay. Disabled veterans choose this waiver for its tax advantages because VA disability income is exempt from federal, state, and local taxes. Military retirement pay waived to receive disability payments is specifically excluded by the USFSPA from the "disposable retired or retired pay" that state courts may treat as property divisible in a divorce action. 10 U.S.C.A. 1408(a)(4)(B) (West Supp. 1998).
Accordingly, state divorce courts may not treat military retirement pay that has been waived to receive veterans' disability benefits as distributable property. Mansell v. Mansell, 490 U.S. 581 (1989); In re Marriage of Bowman, 972 S.W.2d 635 (Mo. Ct. App. 1998); Carney v. Carney, ___ A.D.2d ___, 669 N.Y.S.2d 577 (1998).
Interpretation or Compensation Favoring Nonmilitary Spouse. Waivers to receive disability pay are producing a large amount of litigation and appellate case law.
One view is that provisions in a divorce decree awarding the nonmilitary spouse a specified percentage of military retirement benefits may be enforced without offending federal law after the military spouse waives a portion of the nondisability retirement pay in favor of disability benefits.
For example, in Hisgen v. Hisgen, 554 N.W.2d 494 (S.D. 1996), the South Dakota Supreme Court held that the parties' divorce decree was properly interpreted to require the husband to pay the wife one-half of his gross retirement pay without deducting disability retirement benefits. The parties knew during the negotiations for the agreement that the husband was applying for disability benefits, yet they nevertheless undertook to provide the wife with one-half of his military retirement benefits, the court pointed out. Mansell does not preclude state courts from interpreting divorce settlements to allow a spouse to receive property or money equivalent to one-half a veteran's retirement pay, as long as the spouse's share does not come from disability pay, the Hisgen court declared. Accord Price v. Price, 325 S.C. 379, 480 S.E.2d 92 (Ct. App. 1996) (husband's agreement to pay specified percentage of gross retirement benefits to wife was enforceable even though he had waived part of those benefits to receive disability pay).
Without going that far, other courts have found some mechanism or theory to compensate the nonmilitary spouse for the economic impact of the waiver. See, e.g., Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997); Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100 (1997).
In Abernethy v. Fishkin, the Florida Supreme Court acknowledged that federal law precludes state courts from enforcing a division of veterans' disability benefits. The court held, however, that state courts may enforce a final judgment which guarantees steady monthly payments to a former spouse through an indemnification provision calling for alternative payments to compensate for a reduction in nondisability retirement benefits. Specifically, the agreement precluded the husband from merging his retirement pay with another pension or from pursuing any course of action which would defeat the wife's right to receive the specified portion of his full net disposable retired or retainer pay. The provision protected the wife's right to receive the property or the value of the property she had been allocated by requiring the husband to indemnify her if he breached this provision. "Most significantly, though, the indemnification provision achieved both of these purposes without requiring that the indemnification funds come from disability benefits." 699 So. 2d at 240.
In Kramer v. Kramer, the Nebraska Supreme Court held that while a Nebraska court may not include service-connected disability benefits as part of the marital estate, it may consider such benefits and the corresponding waiver of retirement benefits in determining whether there has been a material change in circumstances which would justify modification of an alimony award to a former spouse who was previously awarded a fixed percentage of the retirement benefits. The court also held, however, that the former spouse (the wife) had to reimburse the military spouse (the husband) to the extent that she had been overpaid by receiving military retirement benefits which he had waived retroactively in favor of disability benefits. To permit her to retain the overpayment would have the effect of awarding her a percentage of the husband's disability benefits, which is prohibited by federal law, the court explained.
No Relief for Nonmilitary Spouse. Not all recent decisions have favored the nonmilitary spouse, however.
For example, the Washington Court of Appeals held that a substantial decrease in the value of military retirement benefits awarded to a service member's spouse, as a consequence of the service member's waiver of retirement pay in favor of disability pay, does not constitute extraordinary circumstances that warrant vacating the dissolution decree. Jennings v. Jennings, ___ Wash. App. ___, 958 P.2d 358 (1998).
The court reviewed state case law and found that Washington dissolution decrees had been vacated for extraordinary circumstances after judgment only in cases involving the retroactive application of the USFSPA. Although the husband's waiver of military retirement benefits in order to receive disability benefits resulted in a substantial decline in the wife's share of that asset, the decline in value was not grounds for relief from the dissolution judgment, the court decided. A nonmilitary spouse can protect her assets by requiring the military spouse to indemnify her for any reduction in retirement benefits, the court said.
Pre-USFSPA Decrees Distributing Disability Benefits. The USFSPA's prohibition against the division of VA disability benefits does not apply retroactively to decrees that became final before the USFSPA went into effect, a Texas appellate court held. In re Marriage of Reinauer, 946 S.W.2d 853 (Tex. App. 1997).
Postdecree Reduction of Military Retirement Pay for Civil Service Compensation. Postdecree disputes can arise when a military retiree joins the federal civil service, as recent cases show.
For example, in an Arizona case the parties' dissolution decree awarded a wife a share of the husband's military retirement benefits, and the husband subsequently waived part of his military retirement pay in order to receive civil service compensation. The Arizona Court of Appeals held that federal law did not require, and state law did not permit, a reduction in the wife's interest in the military retirement pay in order to reflect the reduction in military retirement pay. A reduction in the wife's interest would amount to an improper de facto modification of the decree's property allocation, the court said, upholding a decision that prohibited the husband from reducing payments to the wife. In re Marriage of Gaddis, 191 Ariz. 467, 957 P.2d 1010 (Ct. App. 1997).
In a Texas case, the husband used his military retirement benefits to qualify for civil service retirement after entering into a property settlement, which was incorporated into a court order, granting the wife a share of his military retirement benefits. The Texas Court of Appeals upheld a trial court order stating that the wife was entitled to receive an equivalent amount of the husband's civil service retirement benefits. A trial court has authority to make orders, such as the enforcement order entered here, necessary to carry its judgment into full effect, the court explained. The order here simply provided for the agreed payments to come from the pension fund into which the husband's military pension was deposited, in order to ensure that the husband's unilateral act would not dispossess the wife of her property, the court added. McLaurin v. McLaurin, 968 S.W.2d 947 (Tex. App. 1998).
Indemnification. The cases discussed above illustrate the wisdom of including an indemnification provision in agreements that distribute military retirement benefits. The provision should specifically require the service member to indemnify the other spouse for any distributable military retirement benefits converted into another form of compensation or lost through other causes.
III. Retirement Benefits Other Issues
Federal Cap on Award. The USFSPA specifies that the "total amount of the disposable retired pay of a member payable under all court orders pursuant to subsection (c) may not exceed 50 percent of such disposable retired pay." 10 U.S.C.A. 1408(e)(6) (West Supp. 1998). The weight of authority interprets that provision as only a limitation on payments made directly by the Secretaries of the Armed Services and not a limitation on the total percentage that the former spouse can receive. E.g., Deliduka v. Deliduka, 347 N.W.2d 52 (Minn. Ct. App. 1984); Grier v. Grier, 731 S.W.2d 931 (Tex. 1987); Forney v. Minard, 849 P.2d 724 (Wyo. 1993).
A Missouri appeals court recently declined to follow that view, however. In re Marriage of Bowman, 972 S.W.2d 635, 639 (Mo. Ct. App. 1998). Instead, the court adopted a minority view set out in Beesley v. Beesley, 114 Idaho 536, 758 P.2d 695 (1988). The USFSPA sets a 50% cap on retired pay awarded to former spouses, whether received directly from the Secretary or from the retired member, the Missouri appellate court held. It would be illogical, the court reasoned, for a nonmilitary spouse to be able to receive 90% or even all of a military pension considering that the government could remit only 50% to that spouse. "Why the government would care if it dispenses fifty percent or ninety percent escapes us, unless the fifty percent is the limit a nonmilitary spouse can receive through any means of disbursement," the court declared. In re Marriage of Bowman, 972 S.W.2d at 639.
Jurisdiction to Distribute Military Pensions. A restrictive view of the jurisdictional requirements for distributing military pensions was adopted in a recent Colorado case, In re Marriage of Akins, 932 P.2d 863 (Colo. Ct. App. 1997).
The appeals court in Akins held that the trial court in Colorado, where the parties used to have their marital domicile and where the wife still lived, could exercise long-arm jurisdiction over the husband, but the husband's past domicile in or minimum contacts with Colorado could not form the basis for the exercise of subject-matter jurisdiction to divide his military pension.
The question of whether a trial court acquires jurisdiction over a military spouse's pension is governed not by state rules of in personam jurisdiction or procedure, but by the specific terms of the USFSPA, the court noted. The terms of the USFSPA preempt state rules with respect to a court's jurisdiction to consider the military pension as an asset, the court said. It noted that the USFSPA imposes limits on a court's subject-matter jurisdiction over military pensions, in an apparent effort by Congress to curtail forum-shopping by spouses who might file proceedings in states with favorable marital property laws but with which the military spouse had little contact.
Specifically, the USFSPA prohibits state courts from distributing a military pension unless the court, as of the commencement of the action, has jurisdiction over the member by virtue of residence (other than because of military assignment), domicile, or consent. Therefore, jurisdiction under the USFSPA is more restrictive than the minimum-contacts test, the court decided.
Furthermore, the court continued, the question of consent is not whether the military spouse simply waived his right to contest personal jurisdiction under state procedural rules. "Rather, the statutory language requires some form of affirmative conduct demonstrating express or implied consent to general in-personam jurisdiction." Id. at 868.
Classification Under State Law. Recent appellate cases continue to reflect the view that military nondisability benefits acquired during marriage are marital property, whether vested or not. E.g., In re Marriage of Ward, 955 S.W.2d 17 (Mo. Ct. App. 1997); Contreras v. Contreras, 974 S.W.2d 155 (Tex. App. 1998). Furthermore, military retired pay must be treated as property subject to distribution, not as income only. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997).
At the time of the parties' dissolution proceedings in In re Marriage of Ward, the husband had to serve additional time before being entitled to receive military retirement benefits. The trial court awarded the wife 50% of the husband's military retirement benefits when and if received. The Missouri Court of Appeals held that it was error to treat the benefits as entirely marital, given that additional service by the husband would be required before the benefits vested. The court said that the marital portion of the benefits should be determined by the following calculation: the amount of monthly benefits actually received multiplied by a fraction, the numerator of which is the years of the husband's creditable service during the marriage, and the denominator of which is the total years of creditable service at the time of retirement.
In Contreras v. Contreras, the divorce decree set out a specific formula for apportioning the husband's military retirement benefits when he began to receive them. After the husband retired, the wife sought to enforce and clarify the order to determine her percentage of the benefits. In the enforcement proceedings, the trial court determined her percentage according to case law which limited the community portion of retirement benefits to their value at the time of divorce. The Texas Court of Appeals held that the trial court had impermissibly altered the divorce decree, which called for the wife's share to be computed against the husband's "monthly retirement pay." Furthermore, the trial court incorrectly computed the credit for reserve time served by the husband, the court held, pointing out that reserve service is credited at a much lower rate than active duty service. Errors in computing military retirement can be avoided by deferring to the numbers used by the paying service to calculate the retiree's benefits, the court noted.
In Cook v. Cook, the Wisconsin Supreme Court held that the military retirement pay of a retired service member must be treated as divisible property rather than as income only. The court acknowledged that retirement pay has some characteristics of income, in that the retiree cannot exchange the pay for a lump sum, and the pay terminates at the retiree's death or return to active service. The court pointed out, however, that those characteristics apply to many private sector retirement plans, which constitute marital property upon divorce under settled Wisconsin law.
Distribution. A recent Alabama case made the point that as long as the overall property division is equitable, the trial court is not required to make an actual division of military retirement benefits. The decision upheld a property division which did not award the wife any share of the husband's military retirement benefits. The wife did not present any evidence about the nature and extent of the benefits, the court pointed out. J.N.H. v. N.T.H, 705 So. 2d 448 (Ala. Civ. App. 1997).
"Double Dipping." Some recent appellate cases involving military retirement benefits have centered on the issue of "double dipping" the supposed unfairness that results when property is awarded to a spouse in equitable distribution but is also treated as a source of income for purposes of calculating support obligations.
In In re Marriage of Klomps, 286 Ill. App. 3d 710, 676 N.E.2d 686 (1997), the Illinois Appellate Court held that the husband's child support obligation could be assessed by using his income from his military retirement benefits, even though those benefits were previously determined to be marital property and the former wife was awarded a share of them. Even if previously classified as marital property, military pensions are income for child support purposes at the time when they are paid to the noncustodial parent, the court ruled.
In Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), the Wisconsin Supreme Court likewise held that military retirement pay which has been divided between spouses as part of equitable distribution may also be considered as income for purposes of calculating child support. When a court treats a military pension which was subject to property division as income for child support purposes, the pension is counted for the first time between the parent and child, the court reasoned. Bankruptcy. A recent bankruptcy case centered on a former wife's share of her former husband's military retirement benefits. Although the case did not involve a dispute between divorced spouses, it is noteworthy for placing military pension rights awarded to a former spouse on an equal legal footing with the military service member's share of the pension.
A former wife was awarded a portion of her former husband's military pension in their divorce proceedings, and she began receiving direct monthly payments. When she later filed a petition under Chapter 7 of the Bankruptcy Code, she claimed that her interest in the pension was exempt under an Illinois statute which exempts interests in retirement plans. The trustee claimed, however, that the Illinois exemption was intended to protect only those persons who have earned pensions through their own labor. The bankruptcy court, siding with the wife, held that the plain language of the statute extends to debtors who have come into their pension rights derivatively. In re Lummer, 219 B.R. 510 (Bankr. S.D. Ill. 1998).
IV. Benefits Other Than Retirement Pay
Involuntary Separation Benefits. Benefits received for involuntary separation are the service member's separate property, a Florida appeals court held. White v. White, 710 So. 2d 208 (Fla. Dist. Ct. App. 1998).
White involved a lump-sum payment received by a Navy officer under 10 U.S.C.A. 642 and 1174 when her nonselection for promotion to the next higher rank for a second time triggered her involuntary discharge. The husband contended that the separation pay was analogous to retirement pay because it constituted compensation for past service and because the right to the money accrued during the wife's active military service.
The Florida appellate court held that the pay was the wife's separate property because the one-time payout was intended by the Navy to help the wife readjust to civilian life and employment. The legislative history of 1174 refuted the husband's argument that the pay was akin to retirement benefits, the court found. As authority, the court relied on cases from California and Texas, including In re Marriage of Kuzmiak, 176 Cal. App. 3d 1152, 222 Cal. Rptr. 644 (1986), and Perez v. Perez, 587 S.W.2d 671 (Tex. 1979).
Voluntary Separation Benefits. The need to reduce the size of the Armed Forces led Congress to create two statutory incentive programs to make early retirement an attractive option to military service members: the Special Separation Benefit (SSB) program and the Voluntary Separation Incentive (VSI) program. Benefits received under these programs were not addressed in the USFSPA because both programs were created after the USFSPA was enacted. Accordingly, federal law does not expressly state whether state courts may distribute these benefits.
A California appeals court recently held that federal law does not preclude a state court from classifying and dividing a spouse's VSI pay as community property. The court pointed to a Department of Defense brochure which provides that "[t]he treatment of VSI or SSB [by a state court in a divorce proceeding] is not dictated by Federal law. It will be up to the state courts to rule on the divisibility of these incentives." In re Marriage of Babauta, ___ Cal. App. 4th ___, 78 Cal. Rptr. 2d 281, 282 (1998).
All but one of the state courts which have considered the issue have reached the same conclusion, the court noted, citing cases from Arizona, Florida, Montana, Oklahoma, South Carolina, and Texas. The court distinguished McClure v. McClure, 98 Ohio App. 3d 27, 647 N.E.2d 832 (1993), as involving a service member's decision to choose VSI rather than be subjected to involuntary termination.
Survivor Benefits. The Survivor Benefit Plan (SBP), 10 U.S.C.A. 1447-1455 (West Supp. 1998), is a form of military life insurance. As enacted in 1972, the SBP did not provide for former spouses to be beneficiaries, but Congress subsequently amended the SBP to permit participants to designate former spouses as beneficiaries and to permit state courts to order participants to elect coverage for a former spouse. 10 U.S.C.A. 1448.
Consequently, federal law no longer precludes equitable distribution of a military spouse's SBP. But within one year after the date of the court order requiring a military spouse to elect coverage for a former spouse, either the military spouse must make an actual election to name the other spouse as the beneficiary, or the nonmilitary spouse must initiate a "deemed election" by filing a written request with the appropriate service Secretary along with a copy of the court order. 10 U.S.C.A. 1450.
In a Georgia case where neither of these steps were taken and the military spouse died after remarrying, an appeals court held that federal law barred enforcement of a divorce decree awarding the military spouse's SBP to the former wife. The doctrine of federal preemption barred recognition of the former spouse's state law interest because the statutory conditions were not met, the court decided. King v. King, 225 Ga. App. 298, 483 S.E.2d 379 (1997).
What should be done to implement a court order awarding an SBP to a nonmilitary spouse where the military spouse failed to file an election and the nonmilitary spouse did not take the steps required for a deemed election within the one-year time limit? A Mississippi appeals court said that under these circumstances the nonmilitary spouse should first take the matter up with military authorities to determine whether it would still be possible under the applicable statutes to name the former spouse as the beneficiary. But until such time as the military spouse successfully designates the former spouse as the beneficiary under the military SBP, the military spouse should be required to purchase an alternate annuity that would protect the former spouse's rights, the court said. Johnson v. Pogue, 716 So. 2d 1123 (Miss. Ct. App. 1998).