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petitioner an ownership interest in Mr. Jefferies’ future retired
military pay.
We have no reason to question the validity of petitioner’s
and Mr. Jefferies’ agreement to divide Mr. Jefferies’ future
“military retirement income”. In Colorado, as elsewhere, parties
to a divorce generally “are at liberty mutually to agree upon
provisions * * * which the court could not impose upon them.” In
re Marriage of Lamm, 682 P.2d 67, 68 (Colo. Ct. App. 1984)
(upholding validity of separation agreement requiring automatic
increases in child support payments according to cost of living
increases, despite Colorado courts’ lack of authority to impose
such an arrangement). That said, however, we are not persuaded
that the separation agreement gave petitioner any ownership
interest in Mr. Jefferies’ future military retirement pay. To
the contrary, we believe that under Ellis v. Ellis, supra, at the
time of petitioner’s separation agreement and divorce decree the
future military retirement pay was not “property” in which
petitioner could acquire an ownership interest.
As the Colorado Supreme Court explained in In re Marriage of
Balanson, 25 P.3d 28, 35 (Colo. 2001), a determination as to
property division in a Colorado divorce proceeding “requires two
steps: first, a court must determine whether an interest
constitutes ‘property’; if so, the court must then determine
whether the property is marital or separate.” The lower court’s
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