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Veteran Wins Family Law Retirement Reduction in Taking Disability Pay

John Howell and his ex-wife Sandra divorced with an agreement that she would receive half of his military retirement, but he later opted for smaller disability payments because they were non-taxable.

In a unanimous ruling in Howell v. Howell, the U.S. Supreme Court said he does not have to make up the shortfall to his ex-spouse. Howell had to give up part of his retirement to receive the disability pay, and the court said federal law preempts states from treating waived military pay as divisible community property.

"While the divorce decree might be said to 'vest' Sandra with an immediate right to half of John's military retirement pay, that interest is, at most, contingent, depending for its amount on a subsequent condition: John's possible waiver of that pay," Justice Stephen Breyer wrote for the unanimous court.

"While the divorce decree might be said to 'vest' Sandra with an immediate right to half of John's military retirement pay, that interest is, at most, contingent, depending for its amount on a subsequent condition: John's possible waiver of that pay," Justice Stephen Breyer wrote for the unanimous court.

Community Property

The decision creates a bright line on property division that has beguiled lower courts. The Supreme Court took the case to resolve conflicting decisions in Alaska, Massachusetts, Mississippi, Tennessee, Vermont and elsewhere.

The High Court reversed the Arizona Supreme Court, saying that veterans' retirement pay is excluded from community property division if there is a waiver.

The Uniformed Services Former Spouses' Protection Act authorizes states to treat veterans' "disposable retired pay" as community property, but excludes "disposable retired pay" amounts deducted from that pay "as a result of a waiver."

Spousal Support

The court said that preemption can sometimes work a hardship on divorcing spouses. However, the justices said family courts are free to take into account such contingencies when called upon to calculate or recalculate spousal support.

Amy Howe, writing for the SCOTUSblog, said it's the decision exemplifies the bread and butter of the Supreme Court docket.

"It is a decision with significant real-world consequences that will nonetheless largely fly under the radar," she said.

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