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U.S. Law Dictates Spousal Support from Retirement Pay

Posted by Ken Enright on Jan 26, 2018 12:58:00 AM
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In the recent US Supreme Court case of Howell v. Howell, 137 S.Ct. 1400 (2017), it was held that a state court may not order a veteran to pay more spousal support for the loss in the divorced spouse's portion of the veteran's retirement pay caused by the veteran's waiver of retirement pay to receive service-related disability benefits.

See the news report here.

Background: Federal Law Preempts Unless Congress Says Otherwise

Because the US Constitution gives the federal government control over military and foreign affairs, all federal laws related to the military will preempt and override any and all state laws that are in conflict. This is true for such issues as a service-member's pay and how a state court may treat that pay under state divorce laws.

One prominent example of a case where Congress gave the states authority over certain military-related pay is the Uniformed Services Former Spouses' Protection Act ("USFSPA"), 10 U.S.C. 1408. The purpose of the USFSPA was to:

  • Give state courts, divorce courts in particular, the authority to distribute military retired pay as part of a judgment of dissolution as spousal or child support
  • Provide a method of enforcing spousal or child support orders through the DOD

Note that the USFSPA relates to retirement pay; the USFSPA says nothing about disability pay.

Retirement Vs. Disability Pay: Legal Background

The federal government provides both retirement and disability benefits to veterans. To prevent double dipping, federal law requires, in general, that, to receive disability benefits, a veteran must give up an equivalent amount of retirement pay. Veterans often choose to waive retirement pay in order to receive disability because retirement pay is taxable while disability benefits are not.

As noted, Congress passed USFSPA in 1982 to specifically allow for retired pay to be distributed as part of a divorce. The USFSPA provided that a divorce court may treat a veteran's "retired pay" as community property divisible upon divorce. U.S.C. § 1408(c)(1). But the USFSPA specifically excluded from its definition of "retired pay" amounts deducted from that pay "as a result of a waiver ... required by law in order to receive" disability benefits. § 1408(a)(4)(A(ii).

Facts of Howell v. Howell

TSgt. John Howell and his wife Sandra divorced in 1991 after 13 years of marriage. A year later he retired from the Air Force and Sandra began receiving 50% of his retired pay. About 13 years  later in 2005, the VA found that TSgt. Howell was partially disabled due to a service-related injury during his service. To receive disability pay, federal law required John to give up an equivalent amount of retirement pay which was about $250 a month. As a result, his former wife's share of his retirement pay was reduced by half of that amount, since she was awarded 50% of Howell's retirement pay. Not being happy about losing about $125 a month, the former Mrs. Howell Sandra's petitioned the Arizona family court to enforce the original divorce decree and restore the value of her share of the retirement pay.

The divorce court sided with the former Mrs. Howell. Appeal was taken to the Arizona Supreme Court which upheld the trial court. An appeal was then taken to the US Supreme Court.

US Supreme Court Decision

On appeal, the US Supreme Court reversed the Arizona courts. The court stated that, in general, federal law governed how military pay was treated. The USFSPA was a limited grant of power by Congress and that limited grant specifically excluded authority over disability-related waived portion of military retirement pay. As such, the Arizona courts had no authority or power to essentially take a portion of Tsgt. Howell's disability payments.

Contact Whitcomb, Selinsky, McAuliffe, PC

If you have any questions regarding veteran’s pay and retirement benefits, contact Whitcomb, Selinsky, McAuliffe, PC. We are a law firm dedicated to helping veterans. Call us today at 866-476-4558 (toll-free) at (303) 534-1958 or contact us by email.

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