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Supreme Court Decision May Seriously Impact Ex-Military Spouses

divorce

By Debbie Gregory.

Last month, the U.S. Supreme Court handed down a decision that may have serious implications for the former spouses of veterans.

In Howell v. Howell , the Supreme Court ruled in favor of a veteran who believed he did not owe his ex-wife 20% of his disability pay, and ruled that state courts cannot order veterans to pay divorced spouses for the loss of his or her retirement pay caused by service-related disability benefits.

Former Airman John Howell believed that he did not have to consider his disability pay as part of divisible assets in his 1991 divorce from wife Sarah. At the time of the divorce, John’s upcoming pension was considered a “marital asset” under Uniformed Services Former Spouses’ Protection Act (USFSPA) and split 50-50 with his former spouse

At issue was whether the USFSPA pre-empted a state court’s order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s portion of the veteran’s military retirement pay, when that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability.

When John received a 20 percent disability rating in 2005 from the Department of Veterans Affairs for a service-connected degenerative joint disease in his shoulder, he elected to waive a portion of his monthly retirement pay under pension offset rules, about $250, in order to receive his full monthly VA award. The result, however, was that Sandra’s portion of the pension went down by about $125 a month.

John gave up $250 of his $1,500 a month in retirement pay so that he could receive the same amount in disability benefits. His decision cost Sandra $125 a month, so she sued him in 2013.

While a series of state courts agreed that even if John’s retirement pay had been reduced, Sandra still deserved half of what his retirement pay would have been without the disability benefits, the Supreme Court did not, citing Mansell v. Mansell.

In Mansell v. Mansell, the Court found that the federal USFSPA exempts disability pay as a portion of the retirement pay that a service member waived in order to receive disability benefits from the amount divisible upon divorce.

This ruling could have serious implications for ex-spouses, most affecting those who were married to veterans with 50% disability ratings or less.

Military Connection salutes and proudly serves veterans and service members in the Army, Navy, Air Force, Marines, Coast Guard, Guard and Reserve,  and their families.

Divorce Rules for Dividing a Military Pension

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By Debbie Gregory.

Without question, divorce is traumatic for any family. The division of assets is handled differently in every divorce case, and also depends on the law of the state where the divorce case is pending. A service member’s military pension/retired pay can be a valuable asset in a divorce, legal separation or dissolution of marriage.

In 1982 Congress passed the Uniformed Services Former Spouse Protection Act, which allows state courts to treat disposable retired pay either as property solely of the member, or as property of the member and his spouse in accordance with the laws of the state court. But there is no concrete rule in the act to determine the appropriate division of retired pay.

A state court can divide retired pay in any way it chooses (subject to the laws of that state). All 50 states treat military pension as marital or community property. And the state court can award a share of the military retired pay to a former spouse of military member, regardless of the length of the union.

With that said, the Department of Defense can only make direct payments of a military member’s retired pay to the former spouse if the former spouse was married to the military member for a period of at least 10 years, with at least 10 years of the marriage overlapping a period of military service creditable to retired pay.

Additionally, the DoD cannot make direct payments if the division of retired pay is in excess of 50 percent, or 65 percent if alimony or child support is paid in addition to division of retired pay.

While disability pay is not subject to division as property, it is subject to garnishment for alimony or child support.

Before a court can grant a divorce to military members or spouses, it must have “jurisdiction” or the authority to hear the case. For civilians, jurisdiction is generally the place where the person lives. However, for military personnel, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else.

If the marriage lasted at least 20 years and the service member had at least 20 years of creditable service, and there was at least a 20-year overlap between the marriage and the military service, the former spouse is allowed to retain all military benefits and privileges, including medical, commissary, military exchanges.

Military Connection salutes and proudly serves veterans and service members in the Army, Navy, Air Force, Marines, Coast Guard, Guard and Reserve,  and their families.