The United States Supreme Court Agrees to Review a Military Retirement Issue in a Divorce Case: What Does This Mean for Your Military Retirement?

How a military divorce case landed at the steps of the Supreme Court.

Given that the Supreme Court hears only around 80 cases each year, it is rare that a divorce case would be on their docket. Simply put, they usually have more important constitutional matters to decide. That said, the U.S. Supreme Court has agreed to hear a military divorce case.

The case centers around whether an Arizona state divorce court should be prohibited from ordering a veteran to make up deductions in military retirement pay to provide a former spouse with the same amount she was originally granted in the divorce decree. In effect, the case — Howell v. Howell — is focused on a former spouse's share of a military veteran's retirement pay.

The federal government recommended that the Supreme Court review the case, which typically means the federal government is of the belief that the lower court decision was incorrect.

The nation's highest court granted certiorari on December 2, 2016 to decide a decades-long Arizona divorce case involving an Air Force veteran and the veteran's former wife. Federal law dictates that the spouse of a former service member is entitled to 50% of future retirement pay, and the wife in the Howell case began receiving this amount when the veteran retired in 1992.

Eventually, the airman was diagnosed with degenerative joint disease in 2005, which was military service-related. As a result, the Department of Veteran Affairs awarded disability payments to the veteran, contingent on his forgoing a portion of the retirement pay equal to the disability payment amount. The Department of Veteran Affairs does this to prevent "double-dipping", as it were.

The airman's monthly retirement payment was reduced as a result, which naturally had the carryover effect of reducing the former wife's share of the retirement pay as well. The wife sued, hoping the court would order the airman to make up the disability reduction of his retirement pay, ensuring she would receive the original 50% amount she was promised in the original divorce decree.

The family law court originally ruled in favor of the former spouse, and the case was appealed all the way to the Arizona Supreme Court. The Arizona Supreme Court affirmed the family law court's ruling, which held that she had a vested right to half of the airman's retirement pay. Moreover, the airman's decision to waive part of the retirement pay in favor of disability pay deprived the former spouse of her right.

The Arizona Supreme Court agreed, noting that federal law guaranteed an ex-wife's right to half of the airman's full retirement pay amount. And, the court held that Arizona's state law had no bearing in the case since it was enacted after she gained the right to half of the airman's pay.

The Supreme Court has now decided to weigh in on the matter. Once our nation's highest court reaches a decision, it could have a huge impact on a military veteran's and/or former spouse's ability to collect on retirement pay post-divorce.

If you have questions regarding military divorce, or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at contact@themckinneylawgroup.com

Damien McKinney

The McKinney Law Group, 1105 West Swann Avenue, Tampa, FL, 33606, United States

Damien has practiced in of all aspects of marital and family law for his entire career and offers a rare commodity, a lawyer dedicated solely to his area of practice.