Equitable Division of Voluntary Separation Incentive Payment
McClure v. McClure, 98 Ohio App.3d 27, 647 N.E.2d 832 (1994) held: Given the Congressional intent behind the Voluntary Separation Incentive program, Voluntary Separation Incentive payments are more closely analogous to severance benefits than retirement benefits. . . . Like severance payments, Voluntary Separation Incentive benefits attempt to compensate a separated service member for future lost wages. . . . the mere fact that the amount of the payments is determined according to the number of years of service does not necessarily render these payments compensation for past services.
Rather, severance pay is frequently calculated according to the number of years of employment.
Although severance pay received during the marriage is marital property to the same extent that wages paid during the marriage are marital property, severance payments intended to compensate for wages lost after the divorce cannot be characterized as marital property.
The analogy in Blair v. Blair, likening incentive payments to early retirement, is typical of the rationale reached by the majority of the cases our research has revealed:
See Fisher v. Fisher, 319 S.C. 500, 504, 462 S.E.2d 303, 305 (1995) ("husband's early discharge under the VSI program is analogous to an early retirement . . . [because] any rights the husband now possesses to receive early discharge incentive payments are due to the time he spent in the military and accrued during his marriage to the wife");
Marsh v. Marsh, 1999 UT App 14, 973 P.2d 988, 991 (Ut.App. 1999) (SSB determined to be "analogous to retirement pay");
In re Heupel, 936 P.2d 561, 569 (Colo. 1997) (VSI and SSB "are meant to compensate for the loss of the right to receive retired pay in the future whether characterized as a buyout, an advance, or deferred compensation for services already rendered");
In re Babauta, 66 Cal. App. 4th 784, 78 Cal. Rptr. 2d 281 (1998) (VSI and SSB benefits determined to be community property);
Marsh v. Wallace, 924 S.W.2d 423, 426 (Tex.App. 1996) (SSB "is not compensation for lost future wages but instead compensation for lost retirement pay earned in the past that [husband] voluntarily gave up receiving in the future");
Pavatt v. Pavatt, 920 P.2d 1074, 1076 (Okla.Civ.App. 1996) ("SSB payment is to be treated as a retirement plan asset");
Kulscar v. Kulscar, 896 P.2d 1206 (Okla.App. 1995) (SSB payments are in lieu of retirement benefits); In re McElroy, 905 P.2d 1016 (Colo.App. 1995) (SSB's are marital property).
While McClure predicates its holding on what it perceives to be Congress's intent to provide severance payments for early separation from the military, other jurisdictions have developed a different perspective on the issue of legislative intent.
For example, when presented with a "post enactment discussion draft" purported to provide authority for Congressional intent.