## Facts

- Antonia Caricato Allison and William R. Allison were married and later divorced in September 1981.
- William was a member of the armed services and had federal military retirement benefits.
- The divorce decree expressly awarded all of William’s military retirement benefits to William.
- The decree was rendered after the United States Supreme Court decided *McCarty v. McCarty*, 453 U.S. 210 (1981), and before the effective date (Feb. 1, 1983) of the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408, which authorized state courts to treat certain military retirement pay as divisible under state marital-property law.
- Several years later, after the deadline to appeal the divorce decree had expired, Antonia sued William in a post-divorce partition action seeking a division of the military retirement benefits, claiming the decree’s treatment of the benefits was void and that the benefits remained undivided former community property.
- The trial court granted summary judgment for William.
- The court of appeals affirmed the summary judgment.
- Antonia sought review in the Supreme Court of Texas by application for writ of error.

## Issues

1. Whether a former spouse may maintain a post-divorce partition suit to divide military retirement benefits when a final divorce decree expressly awarded all such benefits to the service member, even though the decree was rendered after *McCarty* and before the USFSPA became effective.

## Decision

- The Supreme Court of Texas (per curiam) refused the application for writ of error, “no reversible error.”
- The court recognized that, after the USFSPA’s effective date, partition suits involving military retirement benefits are governed by the same rules that applied in Texas before *McCarty*.
- The court held that partition is available only for property not divided in the divorce and later held by the former spouses as tenants in common.
- Because the Allisons’ divorce decree expressly disposed of William’s military retirement benefits by awarding them to him, the benefits were not subject to a later partition action.
- The summary judgment for William, as affirmed by the court of appeals, remained in place.

## Legal Principles

- A post-divorce partition action may be used to divide former community property that was not divided in the divorce decree and is thereafter held by the former spouses as tenants in common.
- When a divorce decree expressly disposes of a particular asset or property interest, that express disposition bars a later claim that the asset was omitted and may be partitioned.
- The USFSPA nullified *McCarty*’s effect for state-court treatment of military retirement pay in cases governed by the Act; in Texas, partition suits brought after the USFSPA’s effective date apply the pre-*McCarty* approach, but only as to property not already disposed of in a final decree.
- A final divorce decree’s property division cannot be re-litigated through a partition suit when the decree expressly awarded the disputed property to one spouse.

## Conclusion

Because the divorce decree expressly awarded William all military retirement benefits, those benefits were not undivided property held by the parties after divorce and could not be reached through a later partition suit, even though the decree was entered during the period between *McCarty* and the USFSPA’s effective date.


Allison v. Allison, 700 S.W.2d 914 (1985)