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Supreme Court Rules on Military Retirement Pay and Marital Property Division (Howell v Howell)

Military Retirement Pay and Marital Property Division Morris County NJOn May 15, 2017, the US Supreme Court decided on the case of Howell v Howell (no. 15-1031). This important ruling held that when an armed services veteran waives retirement pay in order to collect service-related disability payments, federal law prevents state courts from ordering the veteran to compensate their divorced spouse for that spouse’s loss of their portion of the veteran’s retirement pay.

The recent case of Howell v Howell involved petitioning husband John Howell, and respondent wife Sandra Howell. As part of their divorce property settlement agreement, it was agreed that John’s anticipated retirement pay was part of the marital property, and as such subject to equitable distribution.

Beginning from the time when John retired from the Air Force, and continuing for the next (13) thirteen years, John collected military retirement pay, 50% of which he gave to his ex-wife Sandra. After thirteen years however, the Department of Veteran Affairs deemed John partially disabled. Under The Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408, John had to waive part of the retirement pay which he shared with Sandra in order to begin receiving disability benefits.

Sandra petitioned her state’s (Arizona) family court to intervene, and enforce the original divorce order so that she would receive the initially agreed upon amount. The Arizona family court ordered John to pay the full 50 percent of his military retirement benefits “without regard for the disability”, reasoning that the original divorce agreement gave Sandra a vested interest in those benefits without regards to the subsequent waiver. Upon appeal, the Arizona Supreme Court upheld this decision, concluding that the relevant case of Mansell v Mansell (490 U.S. 581) did not apply in this circumstance, as the veteran in that case made waived a portion of their retirement benefits before the marital assets were divided rather than after, as John did.

After seeing several different rulings in similar cases from different states, the US Supreme Court intervened, seeking to clarify the matter. Eventually, the Supreme Court held that its decision in Mansell v Mansell does indeed apply to the case of Howell v Howell, and that therefore state courts are preempted by federal law from treating waived military retirement pay as divisible marital property. The Supreme court disagreed that the difference in timing between the two cases distinguished them from one another, stating “the temporal difference highlights only that John’s military retirement pay at the time it came to Sandra was subject to later reduction.”

The Supreme Court further added that “the state court did not extinguish the future contingency of John’s waiver. The existence of that contingency meant that the value of Sandra’s share of military retirement pay was possibly worth less – perhaps less than Sandra and others thought – at the time of the divorce.”

Finally, the Supreme Court concluded that “state court’s cannot vest that which (under governing federal law) they lack the authority to give.”

Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Alito, Sotomayor, and Kagan joined.

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