Justin ThomasChlarson v. Jacqueline Nicole Chlarson

Farmington, Utah family law lawyers represented the parties in a divorce.

Justin and Jacqueline[1] were married in 2012. After a bench trial in 2021, they were divorced. At the time of trial, Justin was serving full time in the military, pending a possible disability retirement.



In the divorce decree (the Decree), the district court awarded Justin and Jacqueline equal shares of the "marital portions" of all retirement and pension funds. Specifically, the district court ordered,



The parties will verify retirement/pension funds and equally share the marital portions of those funds (from September 1, 2012 through October 1, 2021). Each party will be responsible for the Orders (including Qualified Domestic Relations Orders and military division Orders) to obtain their interest in the other party's retirement.



Not long after the Decree was entered, Justin was retired from the military with a disability rating of 100% and nearly twenty-one years of service credited toward retirement. At that point, Justin began receiving two types of pay relevant to this case. First, Justin began receiving disability compensation.[2]Disability compensation is the pay awarded under 38 U.S.C. § 1110, which compensates service members for any disability caused or aggravated by an injury suffered in the line of duty.[3] See 38 U.S.C. § 1110. Second, Justin began receiving disability retirement pay. Disability retirement pay is retirement pay that is specifically awarded and calculated under 10 U.S.C. § 1201 (Chapter 61) for service members who are retired due to a disability. See 10 U.S.C. § 1201(b)(3).



When Justin began receiving his disability retirement pay, he "[refused] to pay anything" to Jacqueline. At the end of 2022, Jacqueline filed a motion to enforce the award of her share of Justin's retirement pay. Justin responded to Jacqueline's motion arguing that his retirement pay was "not subject to division."



After an evidentiary hearing, the district court issued an order concluding that Justin must pay Jacqueline her share of his disability retirement pay.[4] The district court's conclusion was premised on the assertion that it was bound by a recent Defense Office of Hearings and Appeals' Claims Appeals Board (DOHA CAB) decision. See DOHA CAB Decision, 2016-CL-091608.3 (March 1, 2022).[5] Under the reasoning of that decision, Justin's disability retirement pay was no longer grounded in Chapter 61, and thus his disability retirement pay no longer fell within the exemption which prevents it from being divided at divorce. See id. at 6-7. Accordingly, the district court concluded that Justin's retirement income was divisible as a matter of law.



Chlarson v. Chlarson, 2024 UT App 160, 20230742-CA (Utah App. Nov 07, 2024)

Reversed