In most cases, getting a divorce is a matter of purely state law, but that is often not the case with regard to so-called “military divorces” in which at least one spouse is a current or retired member of the military. Because much of the ongoing income that such individuals receive comes straight from the federal government, federal law impacts how such income should be distributed among divorcing spouses, regardless of what state law might say. This curious mix of federal and state law was on full display in the case of Howell v. Howell, in which the Supreme Court of the United States ruled earlier this year that certain types of disability benefits paid to a military service member should not be divided between spouses in a divorce, and the receiving spouse should not be made to have to indemnify the other spouse for any portion of the benefits.
Waiving Military Retirement Pay for Disability Pay
John and Sandra Howell were divorced in 1991, at which time an Arizona state court awarded Sandra 50% of John’s ongoing retirement pay based on his career in the Air Force. Such 50/50 splits of retirement pay between spouses are not uncommon when spouses have been married for a person’s entire working career, as courts will often consider retirement pay property that was earned during the marriage even if it is not paid until a later date.
In 2005, however, John was found to be partially disabled by the Department of Veteran Affairs due to his earlier service work, and, as a result, he decided to have $250 of his monthly retirement pay paid instead as a disability benefit. One financial benefit to John was that disability payments are tax-free while the retirement pay was taxable. An additional benefit was that – pursuant to a federal law entitled The Uniformed Services Former Spouses’ Protection Act – John could argue that the disability payments were outside the scope of the retirement benefit payments that should be divided in a divorce and thus he alone was entitled to the $250 monthly payment. Sandra disagreed, however, and took the matter to court seeking a $125 payment to make up for her reduced half of the retirement benefits she received each month.
The Supreme Court Finds That Federal Law Controls
Sandra’s fight for the reinstatement of the lost $125 payment each month took her all the way to the Supreme Court of the United States, but the court unanimously disagreed with her. The court found that The Uniformed Services Former Spouses’ Protection Act did in fact treat disability payments to a retired military service member as property that could not be divided among divorced spouses, and that any attempt by a state court to somehow counteract that federal protection – such as by forcing John to pay $125 as “indemnity” for her lowered retirement pay – would be unlawful state preemption of federal law.
Furthermore, the court was not moved by the fact that John only started choosing to receive disability payments after the divorce decree (in his case, 14 years after the divorce decree), as the disability actually dated to the period of the divorce even if the parties were not aware of it at the time.
Ultimately, the Howell v. Howell case highlights the complicated intersection of state and federal law that military divorces often involve and the need for experienced legal counsel in a military divorce.
Schedule a Military Divorce Consultation With a Virginia Family Law Attorney Today
At Kurylo Gold & Josey, PLC in Fredericksburg, we will guide through all of your questions regarding a potential military divorce, and help you work towards a favorable outcome in your family law matter. To schedule a consultation with one of our Virginia military divorce attorneys, contact Select Law Partners at 540.642.1766.
Matt Kurylo
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