Thomas Husband and Miriam Wife Hipps were married in 1986, and divorced in 2003. In 1972, some 14 years before the marriage, Husband retired from the Air Force. At the time of the divorce, he was receiving military retirement benefits. The final decree provided that Husband would pay Wife $1000 per month in permanent alimony “as long as she does not remarry or until she dies ” and, “ in addition,” she was awarded “the right to any survivor’s benefits available as a result of his military service.” The decree also included a provision for a “property settlement” of $19,000 payable to Wife, and attorney’s fees for her lawyer. Husband applied for discretionary appeal, urging that the trial court was not authorized to award Wife the survivor’s benefit. Because we concluded that the application was not frivolous, it was granted pursuant to our pilot project in domestic relations cases. 1. Husband contends that his retirement account is not subject to an equitable property division because it is his separate property. Equitable property division is distinctly different from alimony. Wagan v. Wagan , 263 Ga. 376, 377 434 SE2d 475 1993. Alimony is “an allowance out of one party’s estate, made for the support of the other party when living separately. It is either temporary or permanent.” OCGA § 19-6-1 a. Equitable division of property, on the other hand, is ” ‘an allocation of assets acquired during the marriage to the parties, based on their respective equitable interests in those assets. Cits.’ Cit.” Wagan v. Wagan , supra. Only marital property is subject to equitable division. Payson v. Payson , 274 Ga. 231, 232 1 552 SE2d 839 2001. Marital property is that which is acquired as a direct result of the labor and investments of the parties during the marriage. McArthur v. McArthur , 256 Ga. 762, 763 353 SE2d 486 1987. Thus, retirement benefits, “ insofar as they are acquired during the marriage, . . . are marital property subject to equitable division.” Courtney v. Courtney , 256 Ga. 97, 99 2 344 SE2d 421 1986. See also Andrews v. Whitaker , 265 Ga. 76, 77 4 453 SE2d 735 1995; King v. King , 225 Ga. App. 298, 300 483 SE2d 379 1997.
Here, all of Husband’s contributions to his military retirement account pre-date the marriage. Thus, the funds in that account remain an element of his separate property, and are not subject to being equitably divided. However, the trial court did not make an in rem inter vivos division of either the proceeds in the account or the monthly amount currently payable to Husband. Compare Andrews v. Whitaker , supra at 77 4; Courtney v. Courtney , supra at 98 2; White v. White , supra at 269. Instead, it awarded Wife monthly alimony of $1000 and, in addition, a survivor’s benefit, which takes the form of an annuity and is contingent upon her outliving Husband. See King v. King , supra. The survivor benefit plan is designed to provide financial security to a designated beneficiary of a military member, payable only upon the member’s death in the form of an annuity. Upon the death of the member, all pension rights are extinguished, and the only means of support available to survivors is in the form of the survivor benefit plan. Smith v. Smith , 438 SE2d 582, 584 II W.Va. 1993. Thus, “a court order requiring a party to designate a former spouse as a plan beneficiary does not constitute a transfer of property.” Matthews v. Matthews , 647 A2d 812, 817 IV Md. 1994. “The survivor benefit plan ‘provides benefits to . . . the spouse upon . . . the military member’s death and is essentially a life insurance policy unrelated to . . . the military member’s pension.’ Cit.” Smith v. Smith , supra at 585 II.
