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On May 15, 2017, the Supreme Court reversed the Arizonia state court holding that: ” A State Court may not indemnify a divorced spouse for loss in the divorced Spouse’s portion of a veteran’s retirement pay. In Howell the former military member waived 20% of his original retirement pay due to a service-connected disability.
The Howells were divorced in 1991, while the military member was serving in the Air Force. The military member’s future retirement was initially treated as “community property”. The non-military member was awarded 50% of the service member’s retirement when it begins.” The military member later retired and the former spouse begin to receive half of the vested military retirement. Thirteen years later the Department of Veteran’s Affairs found that the military member was disabled for a service-connected disability.
Once the military member elected to receive disablity, DFAS required a waiver of 20% of the original retirement amount. The former spouse sued to enforce the original value of 50% of the emarital share of the military member’s retirement pay. The Arizona court ruled in favor of the former spouse and ordered the retired military member to reimburse the former spouse for the reduction of the former spouse’s original share of the military retirement.
In reversing the Arizona court, the Supreme Court reasoned that the former spouse’s interest in the military member’s retirement was contingent on the retired military member’s future waiver due to a service-connected disability. The Court opined that the former spouse’s interest was similar to any other property interest that is subject to future devaluation.
The Howell decision will have a significant impact on how language relating to “military retirement pay” will be drafted in future marital property agreements.
If you are a military member or military spouse in the process of obtaining a divorce, it’s very important that you hire an attorney.
The Law Office of Lynndolyn Mitchell represents clients in contested divorces involving military retirement involving military members and soon to be “former spouses”.
Lynndolyn Mitchell is licensed in Maryland, Virginia and the District of Columbia. Ms. Mitchell is also accredited to handle disability appeals before the Department of Veteran’s Affairs.