In Re Marriage of Carpenter

Donald Carpenter (husband) and Hye-Suk Carpenter (wife) executed a marital settlement agreement which included a provision confirming that husband’s military retirement benefits were his separate property. The agreement was incofporated by reference into a final judgment of dissolution entered in September 1982. In July 1984, the trial court granted wife’s request for division of those retirement benefits pursuant to Civil Code section 5124. Husband’s principal contention in this appeal is that the application of section 5124 unconstitutionally impairs his contract rights. We disagree. Under other facts modification of a settlement agreement pursuant to section 5124 might result in an unconstitutional distortion of the parties’ bargain. In this case, however, after carefully considering the agreement at issue, the record, and husband’s contentions on appeal, we have concluded that modification was constitutionally reasonable.

I

It is necessary to consider the facts of this case in the now familiar context of the rise and demise of the ill-fated McCarty v. McCarty (1981) 453 U.S. 210 [ 69 L.Ed.2d 589 , 101 S.Ct. 2728 ], in which the United States Supreme Court held that…