## Facts

- Shirley Cearley and Robert L. Cearley divorced on June 3, 1975.
- Robert served in the U.S. Air Force for 19 years at the time of divorce; the parties were married for 18 of those years.
- Robert’s right to receive military retirement pay would mature upon completing 20 years of service.
- The trial court awarded Shirley a contingent share of any future retirement pay using a fraction: one-half of the community portion, measured as 18 years of marriage during service divided by Robert’s total years of active service at retirement, payable only “if and when” Robert received retirement benefits.

## Issues

1. Whether unmatured, non-vested military retirement benefits attributable to service during marriage constitute community property subject to division on divorce.
2. Whether a divorce decree may award the nonemployee spouse a contingent fractional interest payable only “if and when” the employee spouse later receives retirement pay.

## Decision

- The Texas Supreme Court reversed the court of civil appeals and affirmed the trial court’s division.
- The Court held that the portion of military retirement benefits earned during marriage is community property even if the benefits are not vested or presently payable at divorce.
- The Court approved a fractional division payable “if and when” retirement benefits are received, which avoids valuing a contingent right in advance while preserving the community’s proportional interest.

## Legal Principles

- Retirement and pension benefits are treated as deferred compensation earned through employment service, not as a mere gratuity.
- Community property includes property rights earned during marriage; vesting or maturity is not required for the earned portion to be characterized as community property.
- A trial court may divide an unmatured pension by awarding a spouse a proportional share of future payments through an “if and when received” formula tied to years of service during marriage over total service at retirement.

## Conclusion

The Texas Supreme Court held that non-vested military retirement benefits earned during marriage are community property and may be divided at divorce by awarding the nonemployee spouse a contingent fractional interest payable only if and when retirement pay is later received.


Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976)