The Ohio Supreme Court, in Daniel v. Daniel, 139 Ohio St.3d 275, 2014-Ohio-1161, has made clear that unvested military retirement benefits earned during marriage fall within the definition of marital property in Ohio Revised Code 3105.171(A)(3)(a) and must be considered for division of marital property in a divorce.

In the Daniel divorce the Supreme Court said: “While the exact amount to be divided is not ascertainable unless and until the service member completes the required 20 years of service, the percentage of ownership of the benefits on the date of divorce can be readily discerned.  It is simple math: the number of years in service compared to the number of years of marriage provides the formula for division.  

The court acknowledged that it may be difficult to determine the value of benefits that have not vested and may never vest, but stated that it does not follow that those future benefits have no value.  Favoring the deferred distribution method of dividing the asset, the Ohio Supreme Court noted that the trial court was provided with all of the information necessary to calculate the “coveture fraction” (ratio of number of years of employment during the marriage to number of years over the total years of employment).

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Sound complicated?  Okay, it is kind of complicated, but the bottom line is that a court can make orders to divide unvested military retirement benefits in Ohio.  However, the “deferred distribution” part of this means that if the military member never collects, then the former spouse never collects, and that is just a risk the former spouse has to take.

Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist.

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