Kirk v. Kirk

The parties’ Judgment for Dissolution of Marriage was entered in 2002. At the time of the divorce, the husband was not yet retired from the military reserves. He continued to serve in the military for approximately 8 years after the divorce. The parties’ Marital Settlement Agreement provided that the parties were to divide his military retirement benefits 50/50. However, at the prove up, the parties orally testified that their agreement was to divide the marital portion of the military retirement benefits only. When he retired the husband hired Anderson Boback & Marshall who filed a Motion arguing that his ex-wife should get 50% of the portion earned during the marriage and not 50% of his entire pension. Judge Mathein dismissed the Motion with prejudice meaning he could not refile. We then filed an Appeal for the Husband and First District Appellate Court reversed Judge Mathein’s decision and remanded the case for a proper ruling of the wife’s share which would not be 50% of the pension but 50% of the marital share. The ex-wife argued that the Hunt formula should be used. We argued that the Judge should consider not years of service, but “points” accumulated while in the reserves. Judge Mathein agreed with the husband and ordered the marital portion to be calculated via points earned during the marriage.

The husband was represented by Janice L. Boback and Jessica C. Marshal (then was Jessica C. Natkin) of Anderson Boback & Marshall.

The parties were married from 1973 to 2002. The husband had earned points with the United States Army Reserves from 1984 to 2009. He served at least 20 years in the Reserves and accumulated 3,084 points that were used to determine his non-regular, Reserve retired pay. The parties entered into a Marital Settlement Agreement (MSA) that provided that the wife would receive 50% of the of the U.S. Military Retirement pay. However, their testimony at prove-up was that the parties agreed that the wife would receive only 50% of the marital portion. The husband’s assertion was that the parties’ prove-up transcript indicated that both parties testified orally that it was the marital portion only that was to be divided, even though the MSA indicated that the entire amount was to be divided 50/50.

The husband then hired Anderson Boback & Marshall to file a motion that the MSA be reformed to the parties’ prove-up testimony, which was dismissed with prejudice so he could not refile. The Appellate Court reversed her decision and determined that the MSA needed to be modified to match the parties’ intention, which they found was to divide only the marital portion. The parties then disagreed about how the marital portion should be calculated.

The husband was entitled to receive retirement benefits if he achieved 20 qualifying years of creditable service. A qualifying year of creditable service was defined as a year in which he accumulated 50 retirement points. The husband hired William J. Camp as an expert witness who testified that the husband’s gross retirement pay should be calculated by taking his total number of points (3,084) and dividing by 360, then multiplying that figure by 2.5%.

The wife contended that the marital portion should be determined pursuant to the Hunt formula. In re Marriage of Hunt, 78 Ill. App. 3d 653. This determines the marital portion by creating a fraction where the numerator is the number of years or months during the marriage when benefits were accumulated, and the denominator was the total number of months or years when benefits were accumulated. The husband suggested that this method was not appropriate. He argued that the portion should be determined not by the years of service during the marriage but instead based on the points accumulated during the marriage where the number of points earned during the marriage would be the numerator and the total number of points would be the denominator.

The Judge looked to Section 503 of the IMDMA as well as federal law relative to military retirement. Section 503 was clear that all property and all pension/retirement benefits acquired during the marriage were marital property and that the value of the retirement was to be determined by the retirement system. The federal law governing military retirements valued points, not years of service. As such, the Judge determined, utilizing the Hunt/ time-rule formula was inappropriate because the mere passage of time was not what created retirement benefits or what made them more valuable. The points themselves were what directly contributed to the value of the retirement benefits.

The Judge noted that there was no Illinois law directly on point. The parties each cited cases from other states. However, after reviewing the evidence presented, Illinois Statutes, federal statutes and case law from outside of the jurisdiction, Judge Mathein found that applying the Hunt formula would be unjust and inequitable. She determined that an equitable distribution would be to use the points earned during the marriage, divided by total points earned, to calculate the marital percentage.

The marital portion of the points was 1,360, which amounted to 44% of the retirement benefits. Therefore, the wife was entitled to 22% of his monthly benefits.

In re Marriage of Kirk v. Kirk
99 D 12232
Judge Mathein