Plaintiff, )


v. ) No. C17-0891RSL





Defendants. )



This matter came before the Court for a bench trial, which was held on [insert date]. Plaintiff asserted claim of entitlement to fifty percent (50%) of the Defendant’s pension from his career as military personnel. At the close of the trial, the Court ordered the parties to submit proposed findings of fact and conclusions of law.

The Following is the Defendant’s proposed findings of fact and conclusions of law.


Plaintiff and Defendant divorced in the year 2010. Both Plaintiff and Defendant entered into a property settlement agreement that provided the Defendant shall allocate fifty percent (50%) of his military retirement to the Plaintiff. The fifty percent (50%) allocation was intended to apply from the date of marriage, to the date a declaration is made marking the parties as divorced. Following the agreement, the Defendant continued to work for the US Air Force for another decade with subsequent increased pay, time in service and promotions.

Defendant retired in the year [insert year] only to discover the Plaintiff received 50% of the Defendant’s ENTIRE pension benefits and not the portion that was agreed upon.


The Defendant must now demonstrate whether he has proven his case for separate property and breach of contract.

  1. Separate Property

Over time, several presumptions have arisen with respect to marriage, divorce and distribution of property between spouses. One such presumption is that in community property jurisdictions, assets acquired during marriage are community property. Estate of Madsen v. Commissioner, 97 Wn.2d 792, 796, 650 P.2d 196 (1982); Harry M. Cross, The Community Property Law in Washington (Revised 1985), 61 Wash. L. Rev. 13, 28 (1986). This presumption is rebuttable by establishing that the acquisition fits within a separate property provision. Cross, 61 Wash. L. Rev. at 29.

Separate property is defined as property acquired before marriage or acquired after marriage by gift, bequest, devise or descent. RCW 26.16.010, .020; In re Marriage of Brown, 100 Wn.2d 729, 737, 675 P.2d 1207 (1984). Separate property also includes the earnings and accumulations of a husband or a wife while living separate and apart. “When a husband and wife are living separate and apart, their respective earnings and accumulations shall be the separate property of each.” RCW 26.16.140; Aetna Life Ins. Co. v. Bunt, 110 Wn.2d 368, 372, 754 P.2d 993 (1988).

Further, the “living separate and apart” statute contemplates a permanent separation, a “defunct” marriage. Bunt, 110 Wn.2d at 372; Cross, 61 Wash. L. Rev. at 34. A marriage is considered “defunct” when both parties to the marriage no longer have the will to continue the marital relationship. Cross, 61 Wash. L. Rev. at 34. In other words, when the deserted spouse accepts the futility of hope for restoration of a normal marital relationship, or just acquiesces in the separation, the marriage is considered “defunct” so that the “living separate and apart” statute applies. Cross, 61 Wash. L. Rev. at 35. There is no dispute that the Parties herein divorced in the year 2010. Equally so, there is no dispute that the Defendant continued to remain under the employment of the US Air Force following the divorce and property distribution agreement.

“Pension benefits constitute property rights in the nature of deferred compensation, even if benefits are not presently available.”  In re Marriage of Bulicek, 59 Wash.App. at 636-37, 800 P.2d 394.   If the pension was accumulated partly prior to marriage and partly after marriage, it is proportionately classified, with the portion acquired during marriage characterized as community property.   See In re Marriage of Landry, 103 Wash.2d 807, 699 P.2d 214 (1985).

In deciding the distribution of property in a dissolution, the trial court has wide discretion.  Bulicek, 59 Wash.App. at 636-637, 800 P.2d 394.   Generally, the community share is calculated by dividing the number of years of marriage (prior to separation) by the total number of years of service for which pension rights were earned and multiplying the results by the monthly benefit at retirement.  Id. This is known as the time rule method.

In Bulicek, the parties were married for 22 years before separation.   The husband had continued to work after their dissolution.  Bulicek, 59 Wash.App. at 631, 800 P.2d 394.   The value of his monthly retirement benefits was to increase based on these post-dissolution working years.  The court used the time rule method to ensure that the wife would receive a certain percentage of the husband’s retirement benefits, even though the monthly payout would increase after dissolution.  Id. at 638, 800 P.2d 394. 

  • Breach of Contract

A valid contract requires an offer, acceptance of that offer, a meeting of the minds

and consideration. See Forrest Assocs. v. Passamaquoddy Tribe, 760 A.2d 1041, 1044-45 (Me. 2000); Zamore v. Whitten, 395 A.2d 435, 439-40 (Me. 1978) (overruled on other grounds). Furthermore, “the parties [must] mutually assent ‘to be bound by all [of the contract’s] material terms; the assent must be manifested in the contract, either expressly or impliedly; and the contract must be sufficiently definite to enable the court to determine its exact meaning and fix exactly the legal liabilities of the parties.’” Forrest Assocs., 760 A.2d at 1044 (Me. 2000) (quoting VanVoorhees v. Dodge, 679 A.2d 1077, 1080 (Me. 1996)).

A valid contract exists between the Plaintiff and the Defendant. The same is not disputed and the terms of the agreement are to the effect that the Plaintiff shall

Rather, the evidence supports that Plaintiff and Defendants agreed that the Plaintiff shall be entitled to 50% of the Defendant’s retirement pension, with the 50% covering pension accrued up to the time the parties separated. With definite and material terms determined, the parties mutually agreed to the agreement.

Contrary to the agreement, Plaintiff proceeded to acquire 50% of the ENTIRE amount of the Defendant’s retirement pension. This amounts to breach of the agreement entered into willingly and knowingly by the parties.


In light of the findings of fact and conclusions of law, the Defendant prays that

Judgment is entered in favour of the Defendant.

/s/ Scott Alan Anderson


Dated at this 27th day of December, 2021.

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