Flack

On June 29, 1982, an interlocutory judgment dissolved Gerald and Keiko Flack’s marriage of nearly 14 years. Pursuant to a property settlement agreement Gerald’s military pension was declared to be his separate property. On December 31, 1985, Keiko filed a motion to modify the dissolution judgment so as to equitably divide the military pension. On April 14, 1986, the trial court granted the motion. Gerald appeals.

On June 26 1981, the United States Supreme Court held, in McCarty v. McCarty (1981) 453 U.S. 210 [ 69 L.Ed.2d 589 , 101 S.Ct. 2728 ], military retirement benefits are the nondivisible property of the service member. In response, Congress enacted the Federal Uniformed Services Former Spouses’ Protection Act (FUSFSPA), 10 U.S.C. 1408 (effective Feb. 1, 1983). Under FUSFSPA, a state court may treat military retirement pay as either separate or community property in accordance with the law of the jurisdiction. Prior to McCarty , California courts treated non-disability military retirement benefits as community property.

When FUSFSPA became effective February 1, 1983, there existed an 18-month “window period” between June 26, 1981, and February 1, 1983, when McCarty…