Howell v. Howell

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A state court may not order a veteran to indemnify a divorced spouse for the loss in the spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. The Uniformed Services Former Spouses’ Protection Act authorizes states to treat veterans’ “disposable retired pay” as community property divisible upon divorce, 10 U.S.C. 1408, excluding amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits. In their divorce, Sandra was awarded 50% of John’s future Air Force retirement pay, which she began to receive when John retired. Years later, the Department of Veterans Affairs found that John was partially disabled due to an earlier service-related injury. To receive disability pay, John gave up an equivalent amount of retirement pay, 38 U.S.C. 5305. The Arizona Supreme Court affirmed a family court order that Sandra receive her full 50% regardless of the waiver. The U.S. Supreme Court reversed. John’s military pay was subject to a future contingency. State courts cannot “vest” that which they lack the authority to give. Family courts remain free to consider the contingency that some military retirement pay might be waived or consider reductions in value when calculating or recalculating the need for spousal support. View "Howell v. Howell" on Justia Law