## Facts

- Husband served in the U.S. Army for 26 years; the parties were married for about 25 years, covering most of his military service.
- Husband entered service in 1944 and married wife six years later.
- Three years into the marriage, husband suffered a service-related injury resulting in amputation of his left forearm.
- Husband could have taken disability retirement earlier, but remained in the Army for 17 more years and retired at a higher rank and pay grade.
- At retirement, husband was eligible either for (1) longevity retirement pay equal to 65% of base pay, or (2) disability retirement pay equal to 75% of base pay; he elected disability retirement.
- Trial court treated as husband’s separate property: (1) pension rights attributable to premarital service and (2) the portion of benefits attributable to disability; it treated the remaining longevity-like portion as community property and divided it equally.
- Trial court also limited its jurisdiction to modify spousal support to 24 months.
- Wife appealed the pension characterization and the spousal-support jurisdictional limitation.

## Issues

1. Whether the portion of military disability retirement pay that operates as longevity retirement earned during marriage is community property, notwithstanding the servicemember’s election of disability retirement.
2. Whether the trial court erred by limiting jurisdiction to modify spousal support to 24 months in a long-term marriage with uncertain future earning capacities.

## Decision

- Affirmed in part and reversed in part.
- Held that the community has an interest in the portion of disability retirement pay that is the functional equivalent of the longevity retirement the servicemember would have received based on marital service.
- Directed use of a time-rule allocation to determine the community share of the longevity-equivalent component and to divide that share equally.
- Approved treating as separate property only the “excess” amount above the hypothetical longevity retirement, attributable to disability compensation.
- Reversed the 24-month limit on jurisdiction to modify spousal support and remanded to remove the limitation.

## Legal Principles

- Pension rights earned during marriage are deferred compensation and constitute community property to the extent attributable to marital service.
- Military disability retirement pay must be analyzed by function: the retirement-support component is subject to community property rules; only the truly compensatory disability increment may be treated as separate property.
- A servicemember may not, by unilateral post-marital election of disability retirement over longevity retirement, convert community retirement rights into separate property.
- In a long-term marriage, a court generally should not terminate or sharply limit jurisdiction to modify spousal support absent an adequate evidentiary basis to predict future financial circumstances.

## Conclusion

The court required courts to separate disability retirement into a longevity-equivalent retirement component (community property to the extent earned during marriage) and an excess disability component (separate property), and it rejected a fixed 24-month cutoff on spousal-support modification jurisdiction in light of the marriage’s duration and uncertain future earning capacity evidence.


In re Marriage of Stenquist, 582 P.2d 96 (Cal. 1978)