Law School Case Brief
Howell v. Howell - 137 S. Ct. 1400 (2017)
Federal law completely preempts the States from treating waived military retirement pay as divisible community property.
The Uniformed Services Former Spouses’ Protection Act authorized the States to treat veterans’ “disposable retired pay” as community property divisible upon divorce, 10 U.S.C.S. § 1408, but expressly excluded from its definition of “disposable retired pay” amounts deducted from that pay “as a result of a waiver required by law in order to receive” disability benefits.” The divorce decree of petitioner John Howell and respondent Sandra Howell awarded Sandra 50% of John's future Air Force retirement pay, which she began to receive when John retired the following year. About 13 years later, the Department of Veterans Affairs found that John was partially disabled due to an earlier service-related injury. To receive disability pay, federal law required John to give up an equivalent amount of retirement pay. By his election, John waived about $250 of his retirement pay, which also reduced the value of Sandra's 50% share. Sandra petitioned the Arizona family court to enforce the original divorce decree and restore the value of her share of John's total retirement pay. The court held that the original divorce decree had given Sandra a vested interest in the pre-waiver amount of John's retirement pay and ordered John to ensure that she receive her full 50% without regard for the disability waiver. The Arizona Supreme Court affirmed, holding that federal law did not pre-empt the family court's order. The United States Supreme Court granted John's petition for certiorari review.
Did the federal law pre-empt the State from treating waived military retirement pay as divisible community property, and as such, the state court could not order John to indemnify his divorced spouse?
The United States Supreme Court held that federal law completely pre-empted the States from treating waived military retirement pay as divisible community property. As such, a state court may not order the veteran, John, to indemnify his divorced spouse, for the loss in the divorced spouse's portion of the veteran's retirement pay caused by the veteran's waiver of retirement pay to receive service-related disability benefits. According to the Court, state courts cannot vest that which (under governing federal law) they lack the authority to give. Accordingly, while a divorce decree might be said to vest a spouse with an immediate right to half of the military spouse’s military retirement pay, that interest was, at most, contingent, depending for its amount on a subsequent condition: the military spouse’s possible waiver of that pay. The Court reversed the judgment of the Supreme Court of Arizona and remanded for further proceedings.
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