Milham v. Milham (mem.)

An alternate payee spouse is still entitled to their share of pension benefits, even if there is a delay in entering the dividing order
  • If there is a delay between a participant spouse commencing pension benefits and the entry of a domestic relations order dividing those benefits, does the alternate payee spouse have a claim to the missed payments during the interim period?

Facts and Procedural History

The parties divorced in 1998, and Wife was awarded 32.43% of Husband’s military retirement benefits upon his retirement from active service. The decree did not order Husband to pay the benefits directly to Wife, and the parties did not enter a domestic relations order at the time of divorce.

As Husband was approaching retirement, Wife contacted DFAS, the entity responsible for administering military retirement benefits. DFAS initially denied Wife’s application, instructing her to obtain a clarifying order from the trial court. After months of litigation, Husband eventually agreed to the entry of a stipulated domestic relations order dividing Husband’s military retirement.

During the interim period, Husband received 100% of his retirement benefits. The trial court entered a judgment in Wife’s favor for the payments she should have received during the interim period. Husband appealed that judgment, arguing that nothing in the decree required him to make payments to Wife directly during that period.


Unsurprisingly, the court of appeals rejected Husband’s argument and affirmed the judgment to Wife for the interim payments. The payments were Wife’s separate property under the decree, and it was no fault of Wife’s that the payments were delayed. Wife acted promptly to secure her share of the benefits prior to Husband’s retirement. Any other result would have been clearly inequitable under the circumstances.

Milham v. Milham, 1 CA-CV 21-0581 FC, 2022 WL 1801049 (App. June 2, 2022) (mem.).