dissenting: The reasons why I am constrained to dissent may be briefly stated. K.S.A. 23-201(b) specifically includes retired military pay as property. In the case of Veterans Administration s (VA) disability compensation in lieu of retired military pay, *244the rule established in Mansell v. Mansell, 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023 (1989), allows the retiree to unilaterally make an election that diminishes the former spouse’s share of marital property. This is patently unfair to former spouses, especially when retirees have designated them as beneficiaries under their Survivors Benefit Plan, as in this case.
In supporting their argument why the trial court had no method of granting relief to Priscilla, the majority stated that “there is no guarantee by Douglas, by the Air Force, or by anyone else as to 5ie length of time the retirement pay would exist.” This statement is incorrect. Both Douglas and Priscilla agreed that her portion of Douglas’ military retirement pay would be in accordance with 10 U.S.C. § 1408 (1994). As a result, the payments would continue in accordance with the terms of the court order, which was silent on this issue, or no later than the death of Douglas or Priscilla. See 10 U.S.C. § 1408(d)(4) (1994). Priscilla was also designated by Douglas as a beneficiary under his Survivor Benefit Plan. 10 U.S.C. § 1448(b) (1994) and 10 U.S.C. § 1450(f)(3) (1994). Clearly, Priscilla was expecting the flow of payments to continue after Douglas’ death. Moreover, the cost of the Survivor Benefit Plan was deducted from Priscilla’s portion of Douglas’ military retirement benefit.
The majority also determined that it was problematic that the agreement contained “no set monthly amount which Priscilla was to receive.” Nevertheless, under U.S.C. § 1408(a)(2)(C) (1994), a court order dividing retired pay as a property division may be expressed in either dollars or as a percentage of disposable retired pay. Here, the division of retired pay was expressed as a percentage. Under the percentage method, Priscilla would have benefited from any cost of living increase in the military retirement pay occurring after the divorce. On the other hand, if Priscilla’s portion of Douglas’ retirement benefit had been set forth as a specified monetary amount, she would not have received any cost of living increases.
The trial court decree gave Priscilla a vested property interest in Douglas’ military retirement benefit. Priscilla’s interest in the retirement benefit was analogous to a life estate in property. With *245her portion of the retirement benefit, coupled with the survivor’s benefit, Priscilla would have received monthly income during her lifetime. Nevertheless, when Douglas converted the retirement pay to 100 percent disability pay, he canceled her survivor’s benefit for the retirement pay. Priscilla lost not only income during Douglas’ life but also after his death.
No section of 10 U.S.C. § 1408 (1994) requires a court to ignore or modify its original decree which properly divided the retirement benefits due to a later change in the disability rating. In fact, 10 U.S.C. § 1408(e)(6) (1994) states:
“Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided under this section in any case in which the maximum amount permitted under paragraph (1) has been paid and under section 459 of the Social Security Act (42 U.S ,C. 659) in any case in which the maximum amount permitted under subparagraph (B) of paragraph (4) has been paid.”
Although 10 U.S.C. § 1408(e)(1) (1994) prohibits a state court from awarding a nonmilitary spouse a right to collect more than 50 percent of the disposable retired pay, subsection 10 U.S.C. § 1408(e)(6) (1994) allows a state court to use the retiree’s other assets when the retirement benefits will not satisfy the nonmilitaiy spouse’s share of the marital property. The state court can order the retiree to pay directly to the nonmilitary spouse the amount of the deficiency or issue garnishments or hens on other assets.
Though the trial court was powerless to divide Douglas’ VA disability compensation, the trial court could have looked to other financial assets awarded to Douglas when the divorce was granted. I would reverse and remand with directions to award Priscilla the amount of unpaid arrearages and monthly income for the retirement pay.