[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Daniel v. Daniel, Slip Opinion No. 2014-Ohio-1161.] 

NOTICE

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2014-OHIO-1161 

DANIEL, APPELLANT, v. DANIEL, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, 

it may be cited as Daniel v. Daniel, Slip Opinion No. 2014-Ohio-1161.] 

Domestic relations—Divorce—Marital property—R.C. 3105.171(A)(3)(a)—

Military retirement benefits—Unvested military retirement benefits earned 

during marriage are marital property subject to division—Present value 

need not be determined—Court may fashion order deferring distribution 

until benefits become payable.

(No. 2012-2113—Submitted October 22, 2013—Decided March 26, 2014.) 

APPEAL from the Court of Appeals for Mercer County, No. 10-11-09, 

2012-Ohio-5129. 

____________________ 

SYLLABUS OF THE COURT

Unvested military retirement benefits earned during marriage fall within the 

definition of marital property in R.C. 3105.171(A)(3)(a) and must be 

considered for division under R.C. 3105.171(C). 

____________________ 
SUPREME COURT OF OHIO

2 

O’NEILL, J.

{¶ 1} In this case, we consider whether unvested military retirement 

benefits are assets to be considered in a divorce property division. While there is 

always a degree of uncertainty regarding the precise value of such benefits, it is 

beyond dispute that they do have value, even if that value will become fixed only 

in the future. Accordingly, a trial court must take such benefits into account when 

determining a division of property. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} Plaintiff Christen Daniel and defendant Sean Daniel were married 

in 1995. The marriage produced three children, who were aged 13, 11, and 7 at 

the time of the divorce hearing. During the marriage, the parties separated on two 

occasions: from fall 2004 until December 2005 and from January 2008 through 

the date of the divorce decree in 2011. 

{¶ 3} The defendant enlisted in the National Guard just prior to the 

marriage, and at the time of the divorce hearing had been in the Guard for 16 

years. Prior to the hearing, he reenlisted for an additional six years, and he will be 

eligible to receive retirement benefits once he accumulates 20 years of credit. The 

parties entered into an agreement regarding custody of the three children, so their 

divorce trial related only to division of property and debt. 

{¶ 4} The matter was heard by a magistrate, who concluded that “Ohio 

law does not permit the court to divide a non-vested pension benefit.” The 

plaintiff-wife objected to this finding, arguing that “since the Defendant is already 

contractually committed to remain in the military through vesting ‘age’, the court 

should have divided one-half of his retirement benefits during the years of 

marriage.” The plaintiff contended that the court erred in concluding that 

unvested military benefits cannot be divided and that the court should have 

divided those benefits by computing the ratio of the number of years of the 

defendant’s military service during the marriage to the total years of his military 
January Term, 2014 

3

service. The trial court overruled the plaintiff’s objection and adopted the 

magistrate’s decision. In its final order, the trial court found that the defendant’s 

military retirement benefits were a “mere expectancy” and concluded that there 

were “no retirement benefits for the court to divide.” 

{¶ 5} The court of appeals affirmed this decision, even though it implied 

that the trial court’s analysis may have been incorrect. The majority concluded 

that there was no need to decide whether unvested pension benefits are a marital 

asset, because insufficient evidence regarding Sean’s retirement benefits was 

presented at trial in this case to require division of the asset. But a separate 

opinion dissenting on this point observed that in this case, “the potential military 

pension is the only marital asset that the parties may have,” and for that reason, 

“an exact valuation or further details concerning the plan was not necessary in 

order for the court to provide for the future division of this asset.” (Emphasis sic.) 

2012-Ohio-5129, ¶ 61 (Willamowski, J., concurring in part and dissenting in 

part). “[T]he trial court had before it all of the information that was needed in 

order to award Christen one half of the amount of any future military pension that 

was attributable to the points that were earned during the marriage.” Id. at ¶ 64. 

The plaintiff appealed, and this court accepted jurisdiction to determine whether 

unvested military retirement benefits are marital assets subject to division in 

divorce proceedings. 

{¶ 6} We agree with the dissent. While the exact amount to be divided is 

not ascertainable unless and until the service member completes the required 20 

years of service, the percentage of ownership of the benefits on the date of 

divorce can readily be discerned. It is simple math: the number of years in service 

compared to the number of years of marriage provides the formula for division. 

ANALYSIS 

{¶ 7} In any divorce action, the starting point for a trial court’s analysis 

is an equal division of marital property. R.C. 3105.171(C)(1); Neville v. Neville, 
SUPREME COURT OF OHIO

4 

99 Ohio St.3d 275, 2003-Ohio-3624, 791 N.E.2d 434, ¶ 5. Although the trial 

court was not specific on this point, it concluded, in essence, that because the 

defendant’s military retirement benefits had not vested, they were not marital 

property and were therefore not subject to division. We disagree. 

{¶ 8} As defined in R.C. 3105.171(3)(a), “marital property” includes 

“[a]ll real and personal property that currently is owned by either or both of the 

spouses” and “[a]ll interest that either or both of the spouses currently has in any 

real or personal property, including, but not limited to, the retirement benefits of 

the spouses, and that was acquired by either or both of the spouses during the 

marriage.” (Emphasis added.) R.C. 3105.171(A)(3)(a)(i) and (ii). 

{¶ 9} The statute does not distinguish between vested or unvested 

retirement benefits. The portion of the statute that sets forth what is not to be 

considered marital property does not mention retirement benefits at all. R.C. 

3105.171(A)(3)(b). We have held that vested pension benefits are marital 

property. Hoyt v. Hoyt, 53 Ohio St.3d 177, 178-179, 559 N.E.2d 1292 (1990). 

But we have never addressed unvested benefits in this context. 

{¶ 10} Admittedly, it may be difficult to ascertain the value of benefits 

that have not yet vested and may never vest. But it does not follow that those 

future benefits have no value. Most states hold that unvested retirement benefits 

accrued during the marriage constitute marital property subject to division. See 

Cohen v. Cohen, 937 S.W.2d 823, 829 (Tenn.1996) (listing cases from 37 states). 

{¶ 11} In addressing the division of pension benefits, courts have 

fashioned two approaches: the “present cash value” method, which requires the 

court to place a value on the benefit as of the date of the final decree and divide 

that value between the parties, and the “deferred distribution” method, in which 

the court devises a formula for dividing the monthly benefit at the time of the 

decree, but defers distribution until the benefits become payable. Cohen at 831; 

see also Hoyt at 181. 
January Term, 2014 

5

{¶ 12} Our holding in Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio6056, 878 N.E.2d 16, provides a useful example of the “deferred distribution” 

method of accomplishing an equitable division of an unvested retirement benefit. 

The trial court in that case included in the divorce decree the following language: 

“The defendant shall receive one-half of the coverture value of the plaintiff’s 

unvested Teamsters pension if and when it becomes vested. This division shall be 

through a qualified domestic relations order (QDRO) prepared and signed at the 

time of the vesting.”1

 Wilson at ¶ 3.

{¶ 13} Similarly, in Hoyt this court approved the division of a vested but 

unmatured pension benefit by the use of a Qualified Domestic Relations Order, 

but rejected the claim that the trial court must always use the present vested value 

of a plan in reaching its division of property. Id. at 183-184. We identified the 

two goals that trial courts must balance when dividing pension assets. “[W]hen 

circumstances permit, [trial courts] should strive to resolve the issues between the 

parties so as to disassociate the parties from one another or at least minimize their 

economic partnership.” Id. at 182. But “the trial court must obtain a result which 

will preserve the asset so that each party can procure the most benefit.” Id. at 

181. And we recognized that in some situations, achieving the latter goal may 

mean that the former must yield: 

When a trial court decides that a pension or retirement asset 

shall be paid by deferred distribution, it has created a situation 

where the parties’ affairs are not concluded. * * * Although this 

alternative divides the risk between the parties that the benefits will 

fail to vest or mature, as an example, there is nothing to prevent an 

 

1

 We recognize that a Qualified Domestic Relations Order is a device specifically designed for 

assigning benefits to a nonparticipant spouse under the federal Employment Retirement Income 

Security Act, 29 U.S.C. 1001 et seq., and that such an order is not applicable to a nonprivate 

pension. But it may provide a useful model. 
SUPREME COURT OF OHIO

6 

employed spouse, for whatever reason, from quitting his or her 

employment and becoming employed elsewhere. Likewise, the 

nonemployed spouse bears the risk that the employed spouse will 

die and the expected benefits, before being vested or matured, will 

terminate. 

Id. at 182. Hoyt recognizes that while it is desirable to bring finality to the 

parties’ marriage by dividing assets once and for all, doing so is not possible in all 

cases, because it sometimes leads to an inequitable result. And while the dollar 

amount in all likelihood will change as retirement approaches, the percentage 

interest of the parties in the pension will not. 

{¶ 14} The appellate court seems to have understood that the defendant’s 

unvested retirement benefit was marital property under the statute, but then 

concluded that since the precise value of the benefit could not be ascertained 

based on the record presented, it could not be divided. But fixing a precise 

present value and the date of vesting is not mandatory. See Hoyt, 53 Ohio St.3d at 

182, 559 N.E.2d 1292; Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 

16, at ¶ 19-20; Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, 791 N.E.2d 434, at 

¶ 10-11. And in the case of such an important asset, a court can and should seek 

other reasonable methods of achieving equity. As we noted in Hoyt, “[w]hen the 

only marital asset of the parties is an employed spouse’s pension or retirement 

benefits, it is difficult for the trial court to structure an equitable property division 

without dividing the pension or retirement asset.” Hoyt at 183.

{¶ 15} As the plaintiff notes, one possible way to divide such assets is by 

computing “the ratio of the number of years of [the] employed spouse’s 

employment during the marriage to the total number of years of his or her 

employment,” id., a ratio that has come to be known as the “coverture fraction.” 

See, e.g., Thompson v. Thompson, 196 Ohio App.3d 764, 2011-Ohio-6286, 965 
January Term, 2014 

7

N.E.2d 377, ¶ 33. In this case, the trial court was provided all of the information 

needed to calculate the coverture fraction: the dates of the marriage, the dates of 

defendant’s military service, and the dates the two overlapped. This is all that 

was necessary to award the plaintiff a percentage share of the defendant’s military 

retirement benefit. The fact that its precise value will not become fixed, if it ever 

does, until some future date is irrelevant. The trial court had enough information 

in this case to make an equitable division of the benefits, whether by the 

plaintiff’s suggested coverture fraction or some other appropriate method. 

{¶ 16} The trial court and the court of appeals were mistaken in 

concluding that the defendant’s unvested military pension was not a divisible 

asset. This record, although sparse, is sufficient to demonstrate that the plaintiff 

was entitled to share in the sole remaining asset that was earned during the 

marriage. The trial court erred as a matter of law, and as a result its division of 

property was inequitable and an abuse of discretion. 

CONCLUSION 

{¶ 17} Unvested military retirement benefits earned during the marriage 

fall within the definition of marital property in R.C. 3105.171(A)(3)(a) and must 

be considered for division under R.C. 3105.171(C). We reverse the judgment of 

the court of appeals and remand this case to the trial court for further proceedings. 

Judgment reversed 

and cause remanded. 

PFEIFER, KENNEDY, and FRENCH, JJ., concur. 

O’CONNOR, C.J., and O’DONNELL and LANZINGER, JJ., dissent. 

____________________ 

O’DONNELL, J., dissenting. 

{¶ 18} I respectfully dissent. 

{¶ 19} This case presents a question of statutory interpretation regarding 

whether an unvested, contingent future interest in military retirement benefits is 
SUPREME COURT OF OHIO

8 

marital property subject to equitable division in a divorce proceeding. This 

question is substantially different from the division of assets held in a pension or 

IRA account—which are customarily divided using a QDRO—because in this 

instance, the benefits are not currently owned by either party to the divorce, can 

only be acquired, if ever, after termination of the marriage, and may never vest. 

The General Assembly has specifically defined marital property to include only 

assets currently owned by a party to a proceeding and therefore has not provided 

that unvested interests or future interests in property are marital assets. 

Accordingly, because these military retirement benefits are not marital property, 

the appellate court correctly resolved this issue, and its judgment should be 

affirmed. 

{¶ 20} The role of the judiciary in the exercise of the judicial power 

granted by the Constitution is to interpret the law that the General Assembly 

enacts, and the primary goal in construing a statute is to ascertain and give effect 

to the intent of the legislature. State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio5937, 919 N.E.2d 190, ¶ 18. Here, the General Assembly has clearly expressed 

its intent by enacting R.C. 3105.171(A)(3)(a), which specifically defines “marital 

property” to include: 

(i) All real and personal property that currently is owned by 

either or both of the spouses, including, but not limited to, the 

retirement benefits of the spouses, and that was acquired by either 

or both of the spouses during the marriage; 

(ii) All interest that either or both of the spouses currently 

has in any real or personal property, including, but not limited to, 

the retirement benefits of the spouses, and that was acquired by 

either or both of the spouses during the marriage. 
January Term, 2014 

9

(Emphasis added.) Notably, marital property includes retirement benefits of the 

spouse acquired during the marriage and all interests that either spouse currently 

has in the retirement benefits at the time of the equitable division of property. 

The General Assembly could have also included unvested interests in retirement 

benefits or future interest in property that a spouse may receive or acquire at a 

future time, but it chose not to include such an inchoate interest in the definition 

of marital property. Thus, future interests in property that might possibly vest, if 

at all, after the termination of a marriage have not been acquired during the 

marriage, are not currently owned by either or both spouses, and a spouse 

currently has no interest in such benefits. Therefore, they are not marital property 

subject to equitable division by a trial court. 

{¶ 21} In this case, at the time of the divorce, Sean Daniel did not 

currently own any right to military retirement benefits from the National Guard, 

because he had not accumulated 20 years of service credit. Nor did he currently 

have an interest in those benefits, because that interest had not vested and could 

only vest into an enforceable right to payment in the future—only after

termination of the marriage. Notably, he had no ownership right or possessory 

interest in those benefits that would permit him to bring a cause of action for a pro 

rata share of those benefits based on his years of service in the National Guard at 

the time of the divorce. And because he had not acquired any right to receive 

retirement benefits from the National Guard during the marriage, the trial court 

had nothing to divide. 

{¶ 22} Thus, contrary to the view of the majority, which ignores the 

General Assembly’s use of the word “currently” in defining marital property, I 

would decide this case in accord with the expressed intent of the legislature as set 

forth in the plain language of the statute. The General Assembly has defined the 

term “marital property” to include property that is currently owned by either 

spouse, including retirement benefits, and all interest that either spouse currently 
SUPREME COURT OF OHIO

10 

has in retirement benefits. Since neither spouse here currently has a vested 

interest in these benefits, they are not marital property, and the domestics relations 

court may not divide them nor consider them in its distribution of marital assets. 

{¶ 23} If the General Assembly believes that a change in its policy is 

warranted, it may choose to include unvested interests in retirement benefits as 

marital property at some future time. But at present, it has not done so, and this 

court has taken upon itself the role of legislating from the bench in its conclusion 

that it will order these benefits to be considered as marital property. I cannot join 

in this action, because I believe in judicial restraint and the role of the court as 

being limited to interpreting the law as written by the General Assembly. 

{¶ 24} The court of appeals correctly adjudicated this issue, and I would 

affirm its judgment. 

____________________ 

LANZINGER, J., dissenting. 

{¶ 25} I respectfully dissent and would hold that this case was 

improvidently accepted. The majority has redefined marital property under R.C. 

3105.171(A)(3)(a) simply to reverse the outcome in a single case. This case raises 

an issue that deserves a full adversarial presentation to avoid a judgment whose 

far-reaching consequences are unintended. Unvested pensions are not marital 

property, for until the pension is vested, neither spouse has a current interest as 

required by R.C. 3105.171(A)(3)(a)(i), and vesting is a contingent event. What 

other mere contingencies and expectations will trial courts be required to consider 

marital assets subject to division in R.C. 3105.171(C)? 

{¶ 26} We have established that a trial court has broad discretion to divide 

property in domestic relations cases, and its decision will not be disturbed on 

appeal absent unreasonable, arbitrary, or unconscionable conduct. Middendorf v. 

Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998), citing Holcomb v. 

Holcomb, 44 Ohio St.3d 128, 541 N.E.2d 597 (1989); Martin v. Martin, 18 Ohio 
January Term, 2014 

11

St.3d 292, 294-295, 480 N.E.2d 1112 (1985); Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219, 450 N.E.2d 1140 (1983); Berish v. Berish, 69 Ohio St.2d 318, 

319, 432 N.E.2d 183 (1982). “If there is some competent, credible evidence to 

support the trial court’s decision, there is no abuse of discretion.” Middendorf at 

401.

{¶ 27} The court of appeals concluded in a two-to-one decision that it 

could not find an abuse of discretion in the trial court’s decision not to award a 

portion of the unvested military pension based upon the scant record in this case. 

But with only one party, the appellant, filing a single brief in this court and 

presenting oral argument without opposition, the majority now determines that 

unvested military benefits must be considered as marital property subject to 

division. Even the dissenting judge in the court of appeals acknowledged that we 

have not yet ruled on this specific issue, although commenting that current law 

“allows” consideration of an unvested military pension in the division of assets. 

2012-Ohio-5129 at ¶ 58 (Willamowski, J., concurring in part and dissenting in 

part). 

{¶ 28} The previous holdings of this court dealing with the division of 

pension benefits have rightly noted the importance of vesting. Teeter v. Teeter, 18 

Ohio St.3d 76, 78, 479 N.E.2d 890 (1985) (military pension benefits that were 

earned during the marriage and that had vested and were being paid at the time of 

the divorce are marital assets and a factor to be considered in the division of 

property); Hoyt v. Hoyt, 53 Ohio St.3d 177, 182, 559 N.E.2d 1292 (1990) 

(distinguishing between potential division methods for vested matured and vested 

unmatured pension benefits). 

{¶ 29} We have stated that “[p]ension or retirement benefits accumulated

during the course of a marriage are marital assets subject to property division in a 

divorce action.” (Emphasis added.) Erb v. Erb, 75 Ohio St.3d 18, 20, 661 N.E.2d 

175 (1996). But retirement benefits that have not vested have not actually 
SUPREME COURT OF OHIO

12 

accumulated. They do not exist as actual benefits until they vest. The statute 

defining marital assets emphasizes this point: 

“Marital property” means * * * 

(i) All real and personal property that currently is owned by 

either or both of the spouses, including, but not limited to, the 

retirement benefits of the spouses, and that was acquired by either 

or both of the spouses during the marriage; 

(ii) All interest that either or both of the spouses currently 

has in any real or personal property, including, but not limited to, 

the retirement benefits of the spouses, and that was acquired by 

either or both of the spouses during the marriage; 

* * * 

(b) “Marital property” does not include any separate 

property. 

(Emphasis added.) R.C. 3105.171(A)(3)(a). 

{¶ 30} The statute does not have the expansive meaning the majority 

gives it. It may well be that that this court should adopt a rule that unvested 

military retirement benefits accrued during the marriage constitute marital 

property subject to division even while those benefits remain unvested. However, 

such a change in precedent should not occur without robust adversarial 

presentation. This issue is too important in its ramifications to be decided with 

half of the argument unpresented and unheard. 

{¶ 31} This is an example of a one-sided case potentially making bad law. 

Because I believe that we should not have accepted this case for review under 

these circumstances, I dissent. 

O’CONNOR, C.J., concurs in the foregoing opinion. 
January Term, 2014 

13

____________________ 

James A. Tesno, for appellant. 

_________________________