In Re Marriage of Kuzmiak

Husband Michael A. Kuzmiak appeals the order of the trial court finding that the division of his Air Force separation pay is community property. ( 10 U.S.C. § 1174 . We reverse the order and hold that although the trial court had jurisdiction to divide the assets of the marriage, husband’s military separation pay is his separate property unless he applies for military longevity retirement.

Facts

Husband enlisted in the United States Air Force in New Jersey on May 6, 1966. He married Patricia A. Kuzmiak four months later. The parties moved under military orders to Texas the day of their marriage. The Air Force later assigned husband to duty in New York, North Dakota and fi nally, California. The couple arrived in Lompoc, California in 1975 and lived together there for five years until wife filed for divorce on June 9, 1980. The trial court entered a final judgment dissolving the marriage on May 21, 1981, and decided property division two and one-half years later.

.. On February 28, 1983, between the time of the final judgment dissolving the marriage and the trial of the property issues, the Air Force released husband from his command under the military’s “up or out”…