In May 2017, the Supreme Court of the United States ruled upon an issue
that has to do with how military retirement is decided in a
military divorce. The case is called
Howell v. Howell and in its decision the Court held that any portion of military retirement
pay that is waived cannot be treated as part of the community estate that
is divisible between the parties in a divorce.
If you are part of a military family and are currently going through a
divorce or are contemplating one this decision by the highest Court in our country
may have a significant impact on your case. The
divorce attorneys at the Law Office of Bryan Fagan would like to use this blog post to write
about the decision and its potential importance in your life.
Background on the
The married persons who are the main characters in the case we’re
discussing are John and Sandra Howell. These folks are from Arizona and
when they got a divorce Sandra was awarded fifty percent of the total
military retirement pay John would receive when it came time for him to
retire. For thirteen years Sandra received the benefits in accordance
with their divorce decree.
If we jump ahead the thirteen years with the ex-spouses, John is determined
to be partially disabled. This means that he is now eligible to receive
disability pay from the military.
However, the government has a rule against “double dipping”,
which in this context means that to collect the disability benefits he
had to waive a similar amount of his retirement benefits moving forward.
He ultimately did decide to receive the disability benefits and waive
the same monetary value in retirement benefits.
As a result of this waiver, Sandra Howell’s monthly retirement benefits
were reduced by $125 moving forward. Was Sandra happy about development?
No, Sandra was not happy. She was so not happy that she filed a petition
with the Arizona
family law court that continued to have jurisdiction over the parties and sought to have
the terms of their divorce decree enforced.
She was asking that John Howell be responsible for ensuring that she not
see any decrease in her monthly award of retirement benefits, regardless
of what John decided to do about his own disability pay.
The Supreme Court of Arizona weighs in on the matter
Eventually Sandra Howell’s petition made it all the way to the Arizona
Supreme Court. For those who are not aware, a family court is more commonly
called a “trial court” in the legal world. A trial court is
a lower level court that applies the law as the judge sees fit based on
the evidence presented to him or her.
If a party disagrees with the decision of the trial court he or she can
appeal the decision to a higher court known as an appellate court. Different
states call these appellate court different names, but a case must get
appealed twice from the family law court in order to make it all the way
to the Supreme Court in Arizona.
With that bit of fun and interesting legal information out of the way we
can rejoin our friends, the former Mr. and Mrs. Howell. The lower court
ruled in Sandra Howell’s favor stating that she was vested in an
amount equal to fifty percent of John’s retirement pay when the
divorce was finalized and signed off on by the Court.
John Howell was not too pleased by this development so he too appealed
the decision all the way to the Supreme Court of Arizona. John’s
displeasure continued there as the Arizona Supreme Court affirmed the
decision of the lower court and ordered John to reimburse Sandra for the
decrease in her monthly benefits award.
Mr. Howell (and his ex wife) go to Washington
John Howell appealed the decision from the Arizona Supreme Court that went
against his favor all the way to the Supreme Court of the United States.
As a background piece of information, the Uniformed Services Former Spouses’
Protection Act are the laws that the Supreme Court would have to interpret
in order to come to a decision in this case.
The law makes military retirement pay divisible in state courts as community
property when spouses decide to get a divorced. However, the law excludes
amounts that are deducted from retirement pay.
A prior Supreme Court decision held that state courts (like the Howell’s
family law court in Arizona) could not divide military retirement pay
that has been waived to receive veterans’ disability benefits.
The main question broke down to this: did it matter that Mr. Howell waived
his right to a portion of his retirement benefits after his divorce had
been finalized or would it be treated the same way as if he had waived
prior the finalization of divorce?
In a decision that went against the Arizona Supreme Court, the U.S. Supreme
Court held that a waiver of retirement pay, regardless of the time it
was made, did in fact exempt that portion from being divided in a divorce.
As a result, a complex question regarding military retirement pay was settled.
The bottom line is if you are going through a divorce and are a member
or are married to a member of the United States Armed Forces, your divorce
court may take into account the likelihood of a change to the retirement
pay of yourself and your spouse when your divorce is being finalized.
However, any present or future waived retirement pay is not subject to
being divided up.
The Law Office of Bryan Fagan Knows Military Divorces
If you find yourself facing a divorce where military retirement benefits
are at stake please consider contacting the attorneys with the Law Office
of Bryan Fagan. We proudly represent military families across southeast
Texas and we would be honored to do the same for you and your family.
A consultation can be set up with one of our licensed
family law attorneys at no cost to you.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- Military Divorces in Texas
- Essential Information for Military Divorces in Texas
- Military Support Without a Court Order During a Divorce in Texas
- How to Divorce a Spouse in the Military
- Texas Divorce - Serving Military Personnel or their Spouse Worldwide
- Texas Statute Aids Military Personnel and Their Spouses in Filing for Divorce
- Roadmap of Basic Divorce Procedure in Texas
- How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
- How am I going to Pay for My Texas Divorce?
- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
Law Office of Bryan Fagan | Texas Military Divorce Lawyer
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with ar
Texas military Divorce Lawyer right away to protect your rights.
military divorce lawyer in Spring TX is skilled at listening to your goals during this trying process and developing
a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Spring, Texas,
Houston, the FM 1960 area, or surrounding areas, including
Fort Bend County and