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

In May 2017, the United States Supreme Court made a ruling on how courts decide military retirement in a military divorce. The case, Howell v. Howell, found that courts cannot treat waived portions of military retirement pay as part of the divisible community estate in a divorce.

If you are in a military family going through or considering a divorce, this landmark decision could significantly affect your case. The divorce attorneys at the Law Office of Bryan Fagan, PLLC, aim to explain the decision’s potential impact on your life through this blog post.

Background on the Howell Case

John and Sandra Howell, the central figures in the case from Arizona, divorced, and Sandra received half of John’s eventual military retirement pay. For thirteen years, she received these benefits as per their divorce decree.

Fast forward thirteen years, and John qualifies for partial disability, making him eligible for disability pay from the military. To receive this, he had to waive an equivalent amount of his retirement benefits, which he did.

This waiver reduced Sandra Howell’s monthly retirement benefits by $125. Unhappy with this, Sandra filed a petition with the Arizona family law court, which still had jurisdiction over their case, demanding enforcement of their original divorce decree. She wanted John to ensure her retirement benefits remained unchanged, regardless of his disability pay decisions.

The Supreme Court of Arizona’s Involvement

Sandra Howell’s petition eventually reached the Arizona Supreme Court. Just for context, a family court, or trial court, is a lower-level court where a judge applies the law based on presented evidence. Disagreements with trial court decisions can be appealed to higher courts, known as appellate courts. A case must undergo two appeals from the family law court to reach the Arizona Supreme Court.

Back to the Howells: the lower court ruled in Sandra’s favor, stating her entitlement to half of John’s retirement pay at the time of their divorce. John, displeased, appealed to the Arizona Supreme Court, which upheld the lower court’s decision and ordered him to compensate Sandra for her reduced benefits.

Mr. Howell (and his ex-wife) Go to Washington

John Howell challenged the Arizona Supreme Court’s decision in the United States Supreme Court. This case involved interpreting the Uniformed Services Former Spouses’ Protection Act, which allows military retirement pay division as community property in state courts during divorces but excludes waived amounts.

A key Supreme Court precedent had already established that state courts couldn’t divide military retirement pay waived for disability benefits. The pivotal question was whether the timing of Mr. Howell’s waiver, post-divorce, affected its divisibility.

The U.S. Supreme Court disagreed with the Arizona Supreme Court, ruling that any waiver of retirement pay, regardless of timing, exempts that portion from division in a divorce. This ruling resolved a complex issue regarding military retirement pay.

The takeaway: if you’re divorcing as a member or spouse of a U.S. Armed Forces member, your court may consider potential changes in retirement pay. However, waived retirement pay, whether now or in the future, cannot be divided.

The Law Office of Bryan Fagan, PLLC and Military Divorces

If you’re facing a military divorce involving retirement benefits, consider consulting with the Law Office of Bryan Fagan, PLLC. We represent military families across southeast Texas and would be honored to assist you. Our licensed family law attorneys offer free consultations.


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  4. How to Divorce a Spouse in the Military
  5. Texas Divorce – Serving Military Personnel or their Spouse Worldwide
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