Tampa military divorce

Understanding the Recent North Carolina Court of Appeals Case: Diener v. Brown

The North Carolina Court of Appeals recently issued a ruling on a case that has drawn considerable attention due to its implications for military retirees and their former spouses. In the case of Amanda L. Diener v. Robert Brown, the court addressed issues surrounding the enforcement of a separation agreement, specifically relating to the division of military retirement pay. This case provides a crucial precedent for similar disputes and highlights the importance of clear legal agreements and the role of an Asheville divorce lawyer in navigating such complexities.

Background of the Case

Amanda L. Diener and Robert Brown were married on April 17, 2011. During their marriage, Brown served in the United States Marine Corps and retired in March 2016 after 15 years of service. The couple separated on March 15, 2018, and their divorce was finalized on May 8, 2019. As part of their separation agreement, they attended mediation on January 22, 2019, where they agreed that Diener was entitled to 15% of Brown’s monthly military retirement pay.

The separation agreement, dated February 28, 2019, stipulated that Diener would receive this portion of Brown’s military retirement pay for the remainder of his life. Diener’s attorney was responsible for preparing the necessary documents to facilitate this payment, with Brown’s attorney given the opportunity to review these documents before submission to the Defense Finance and Accounting Service (DFAS).

Dispute Over Payment

A significant issue arose when Diener’s attorney informed Brown’s attorney that Diener could not receive direct payments from DFAS because the couple had not been married for the required ten years, as mandated by 10 U.S.C. § 1408(d)(2). Despite this statutory bar, Diener proposed that Brown set up automatic payments to ensure she received her agreed portion. Brown refused, leading Diener to file a suit for breach of contract and specific performance on February 14, 2020.

Brown’s refusal to comply with the terms of the agreement prompted legal action, and Diener did not receive any payments from Brown’s military pension, which was supposed to begin on February 1, 2019.

Court Proceedings and Judgment

The Mecklenburg County District Court initially heard the case and concluded that Brown had indeed breached the separation agreement. The court ordered Brown to pay Diener 15% of his monthly military retirement pay and an additional $8,550 in arrearages.

Brown appealed this decision, arguing that Diener was not entitled to her portion of his military pension because she was barred from receiving payments directly from DFAS due to the length of their marriage. He contended that this statutory bar effectively nullified the agreement.

Court of Appeals Decision

The North Carolina Court of Appeals, in its judgment filed on September 5, 2023, upheld the lower court’s decision. The court found Brown’s argument to be nearly frivolous, reaffirming that he had breached the terms of the separation agreement. The court emphasized that the intention of the parties at the time of the agreement was clear: Diener was entitled to 15% of Brown’s military retirement pay.

The court also addressed the issue of specific performance, which is an equitable remedy used when the legal remedy (monetary damages) is inadequate. Given that Diener would have to repeatedly sue to secure her portion of the monthly payments, the court found the remedy at law inadequate. Thus, specific performance was deemed appropriate, requiring Brown to comply with the original terms of the separation agreement.

The Role of Asheville Divorce Lawyers

Navigating the complexities of military retirement pay in divorce cases requires expertise and precision. This case underscores the critical role that an experienced Asheville divorce lawyer plays in ensuring that separation agreements are not only fair but also enforceable. Lawyers specializing in divorce, particularly those familiar with military regulations, can anticipate potential legal hurdles and craft agreements that withstand challenges.

For Diener, having competent legal representation was pivotal. Her attorneys from Epperson Law Group, PLLC, adeptly handled the intricacies of the case, from mediation to court proceedings. This legal expertise ensured that her rights were protected and ultimately upheld by the court.

Understanding Military Retirement Pay Division

Military retirement pay division in divorce cases is governed by specific federal statutes, including the Uniformed Services Former Spouses’ Protection Act (USFSPA). This act allows state courts to treat military retirement pay as divisible property in divorce cases. However, it also imposes certain conditions, such as the ten-year marriage rule, which became a focal point in Diener v. Brown.

The ten-year rule stipulates that for a former spouse to receive direct payments from DFAS, the couple must have been married for at least ten years, during which the service member performed at least ten years of creditable military service. In this case, although Diener and Brown were not married long enough to meet this requirement, the separation agreement provided an alternative method for Diener to receive her share, which Brown failed to honor.

The Importance of Clear and Enforceable Agreements

The Diener v. Brown case highlights the necessity of clear and enforceable separation agreements. When drafting such agreements, it is crucial to consider all relevant laws and potential enforcement issues. This is where the expertise of an Asheville divorce lawyer becomes invaluable. They can ensure that the agreement is comprehensive and includes provisions for alternative arrangements if direct payment methods are not viable.

In the Diener v. Brown case, the agreement clearly stated that Diener was entitled to 15% of Brown’s military retirement pay. However, it also placed the responsibility on Brown to ensure that Diener received her payments, even if direct payments from DFAS were not possible. This clarity in the agreement was instrumental in the court’s decision to enforce specific performance.

Lessons Learned from Diener v. Brown

Importance of Legal Representation: The case underscores the importance of having knowledgeable legal representation when negotiating and drafting separation agreements. An experienced Asheville divorce lawyer can provide critical guidance and ensure that all legal nuances are addressed.

Clarity in Agreements: Separation agreements must be clear and detailed. They should anticipate potential obstacles and include provisions for alternative arrangements. In Diener v. Brown, the clarity of the agreement played a key role in the court’s decision.

Understanding Federal and State Laws: Navigating the intersection of federal and state laws is crucial, especially in cases involving military retirement pay. Understanding statutes like the USFSPA and the ten-year rule can prevent disputes and ensure fair division of assets.

Enforcement of Agreements: Courts are willing to enforce separation agreements through specific performance when necessary. This case demonstrates that parties cannot evade their obligations by exploiting statutory technicalities.


The North Carolina Court of Appeals decision in Diener v. Brown serves as a vital reminder of the binding nature of separation agreements and the courts’ willingness to enforce these agreements through specific performance. This case is particularly relevant for military retirees and their former spouses, emphasizing the importance of understanding the interplay between military regulations and state divorce laws.

For those navigating similar situations, consulting with an experienced Asheville divorce lawyer is essential. Such legal experts can provide the necessary support and advice to ensure that agreements are fair, clear, and enforceable, ultimately protecting the rights and interests of their clients.

In conclusion, the Diener v. Brown case not only sets a precedent for future cases involving military retirement pay but also reinforces the significance of thorough and precise legal documentation. It highlights the essential role of Asheville divorce lawyers in safeguarding their clients’ interests and ensuring that justice is served, even in the face of complex legal challenges.

Asheville Divorce Lawyer

Asheville Divorce Lawyer

If you have inquiries about prenuptial or postnuptial agreements, or if you need expert legal assistance in other areas of Family Law in Tampa, Florida or Asheville, North Carolina—including high asset divorces—please don’t hesitate to reach out to Damien McKinney of The McKinney Law Group for a detailed discussion of your case. Damien is available for contact via phone at 813-428-3400 or by email at [email protected].

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