B-142842, JUN. 16, 1960

B-142842: Jun 16, 1960

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YOU SAY THAT THE OFFICER'S WIFE WAS GRANTED AN INTERLOCUTORY DECREE OF DIVORCE ON FEBRUARY 1. YOU ALSO SAY THAT NEITHER THE OFFICER NOR HIS WIFE HAVE TAKEN OR PLAN TO TAKE THE NECESSARY ACTION TO HAVE THE DIVORCE BECOME FINAL SUBSEQUENT TO THE EXPIRATION OF THE NORMAL ONE-YEAR PERIOD ON JANUARY 31. THERE HAS BEEN NO RECONCILIATION BETWEEN THE COUPLE AND THEY ARE LIVING IN SEPARATE HOUSEHOLDS. YOU ASK WHETHER THE OFFICER IS ENTITLED TO BE CREDITED WITH SUCH ALLOWANCE SUBSEQUENT TO THE EXPIRATION DATE OF THE INTERLOCUTORY PERIOD. THE LEGAL RELATION OF HUSBAND AND WIFE IS NOT TERMINATED BY AN INTERLOCUTORY JUDGMENT OF DIVORCE AND UNTIL A FINAL DECREE OF DIVORCE IS GRANTED. THE OFFICER MAY BE CONSIDERED TO HAVE A LAWFUL WIFE UNTIL A FINAL DIVORCE DECREE IS ENTERED.

B-142842, JUN. 16, 1960

TO CAPTAIN E. R. HERMES, F.C., FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

BY SECOND INDORSEMENT DATED MAY 9, 1960, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED APRIL 21, 1960, AND ENCLOSURES (ALLOCATED D.O. NO. 502 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING AN ADVANCE DECISION AS TO THE RIGHT OF COLONEL JOHN F. KELLOGG, JR., 0-63703, TO BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE FOR THE PERIOD APRIL 1 TO 30, 1960.

YOU SAY THAT THE OFFICER'S WIFE WAS GRANTED AN INTERLOCUTORY DECREE OF DIVORCE ON FEBRUARY 1, 1959, BY A COURT OF THE STATE OF CALIFORNIA, WHICH JUDGMENT REQUIRED PAYMENT OF $480 A MONTH ALIMONY. YOU ALSO SAY THAT NEITHER THE OFFICER NOR HIS WIFE HAVE TAKEN OR PLAN TO TAKE THE NECESSARY ACTION TO HAVE THE DIVORCE BECOME FINAL SUBSEQUENT TO THE EXPIRATION OF THE NORMAL ONE-YEAR PERIOD ON JANUARY 31, 1960. THERE HAS BEEN NO RECONCILIATION BETWEEN THE COUPLE AND THEY ARE LIVING IN SEPARATE HOUSEHOLDS. THE OFFICER HAS BEEN PAID BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE FOR THE PERIOD FEBRUARY 1 TO MARCH 31, 1960. YOU ASK WHETHER THE OFFICER IS ENTITLED TO BE CREDITED WITH SUCH ALLOWANCE SUBSEQUENT TO THE EXPIRATION DATE OF THE INTERLOCUTORY PERIOD.

UNDER THE STATUTES OF THE STATE OF CALIFORNIA, THE LEGAL RELATION OF HUSBAND AND WIFE IS NOT TERMINATED BY AN INTERLOCUTORY JUDGMENT OF DIVORCE AND UNTIL A FINAL DECREE OF DIVORCE IS GRANTED, SUCH RELATIONSHIP CONTINUES. IN RE DARGIE'S ESTATE, 162 CAL. 51, 121 PAC. 320; 22 COMP. GEN. 1145; 26 ID. 514. HENCE, THE OFFICER MAY BE CONSIDERED TO HAVE A LAWFUL WIFE UNTIL A FINAL DIVORCE DECREE IS ENTERED. WHILE THE GENERAL RULE IS THAT BASIC QUARTERS ALLOWANCE IS AUTHORIZED IN THE CASE OF A LAWFUL WIFE WITHOUT A SHOWING OF DEPENDENCY, THAT RULE IS NOT FREE FROM EXCEPTIONS. SEE ROBEY V. UNITED STATES, 71 C.CLS. 561; 26 COMP. GEN. 514, AND 33 ID. 308, CONCERNING A MEMBER SEPARATED FROM HIS WIFE AND WHERE HER SUPPORT WAS CONSIDERED MATERIAL.

IT IS NOT STATED IN YOUR LETTER, OR ITS ENCLOSURES, WHETHER THE OFFICER HAS CONTINUED TO SUPPORT HIS WIFE SINCE JANUARY 31, 1960, BUT IT IS ASSUMED THAT SUCH IS THE CASE. ACCORDINGLY, UPON THE FILING BY THE OFFICER, IN THE ACCOUNTS OF THE DISBURSING OFFICER INVOLVED, OF HIS AFFIDAVIT, CORROBORATED BY AN AFFIDAVIT OF HIS WIFE, THAT HE HAS SUPPORTED HER SINCE JANUARY 31, 1960, PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE FOR THE PERIOD APRIL 1 TO 30, 1960, IS AUTHORIZED, IF OTHERWISE CORRECT, AND THEREAFTER AS LONG AS THE MARITAL RELATIONSHIP BETWEEN THE PARTIES IS NOT DISSOLVED BY A FINAL DECREE OF DIVORCE AND THE OFFICER CONTINUES TO SUPPORT HIS WIFE.

THIS DECISION, OR A COPY THEREOF, SHOULD BE INCLUDED IN THE ACCOUNT WHEREIN CREDIT WAS FIRST CLAIMED FOR THE ALLOWANCE AFTER JANUARY 31, 1960.