The U.S. Supreme Court Rules on Divorce and Military Disability Benefits, 1217 RIBJ, RIBJ, 66 RI Bar J., No. 3, Pg. 13
| Author | Marc J. Soss, Esq. Practices in Florida |
November, 2017
Marc J. Soss, Esq. Practices in Florida
The May 15, 2017, U.S. Supreme Court ruling in Howell v. Howell is a unanimous victory for disabled U.S. veterans. The U.S. Supreme Court decision upholds federal law and prior rulings that military disability compensation is not divisible in divorce proceedings.
Case Background
Air Force veteran John Howell and Sandra Howell divorced in 1991 in the community property state of Arizona. The divorce decree awarded Sandra one-half (1/2) of John’s military retirement compensation. In 2005, the Department of Veterans Affairs found John to be partially disabled due to a service-related injury and awarded him disability compensation. In order to receive the disability compensation, non-taxable income, under Federal law 38 U. S. C. § 5305, John was required to waive an equivalent portion of his military retirement compensation, which is taxable income. The election resulted in a $250 per month reduction in John’s military retirement compensation which equated to a $125 per month reduction in the amount Sandra would receive.
Sandra then petitioned the Arizona Family Court to enforce the original divorce decree and restore the $125 per month amount she was no longer receiving. The Family Court concurred with Sandra and “held that the original divorce decree had given Sandra a vested interest in the prewaiver amount of John’s retirement pay and ordered John to ensure that she receive her full 50% without regard for the disability waiver.” The Arizona Supreme Court affirmed the ruling and held that “federal law did not preempt the family court’s order.” The Arizona Supreme Court distinguished the Mansell ruling with the Howell case based on the fact that the veteran’s waiver in Mansell took place before the divorce proceeding while the waiver Howell took place after the divorce.
History of the Law
In McCarty v. McCarty,1 the U.S. Supreme Court addressed whether a state “could consider any of a veteran’s retirement pay to be a form of community property, divisible at divorce.” The Court concluded that states could not, as it threatened to harm clear and substantial federal interests. As a result, in 1982 Congress passed the Uniformed Services Former Spouses’ Protection Act (“USFSPA”). The USFSPA authorizes states to treat a veteran’s...
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