The United States Supreme Court Answers a Question about Military Retirement Benefits

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, PLLC would like to use this blog post to write about the decision and its potential importance in your life.

Background on the Howell case

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, PLLC 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, PLLC. 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.

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