On May 15, 2017, the U.S. Supreme Court decided Howell v. Howell, No. 15-1031, holding that where a veteran waives retirement pay to receive service-related disability benefits, federal law preempts state courts from ordering the veteran to indemnify their divorced spouse for the loss of that spouse’s portion of the veteran’s retirement pay.
Petitioner John Howell and respondent Sandra Howell were divorced in Arizona. The divorce decree treated John’s anticipated retirement pay as community property, and provided that Sandra would receive 50 percent of John’s military retirement benefits once John retired from the Air Force and began to receive those benefits. John began to receive military retirement pay when he retired the following year, and Sandra began receiving half of John’s military retirement benefits, which she continued to receive for the next 13 years until John was deemed partially disabled by the Department of Veterans Affairs. Once John was deemed partially disabled, under The Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, John had to waive part of the retirement pay he shared with Sandra to begin receiving disability benefits. This reduced Sandra’s share of John’s retirement pay, and Sandra asked the Arizona family court to continue enforcing the original divorce decree so that she would again receive her original share.
The Arizona family court ordered John to pay Sandra her full 50 percent of his military retirement benefits “without regard for the disability,” reasoning that the original divorce decree gave Sandra a vested interest in those benefits without regard to the subsequent waiver. The Arizona Supreme Court upheld the family court’s decision, concluding that Mansell v. Mansell, 490 U.S. 581 (1989) did not control because unlike the veteran in Mansell, John made his waiver after, rather than before his military retirement pay was divided. The Supreme Court granted certiorari because different state courts came to different conclusions on this matter.
The Court held that its decision in Mansell did indeed control the outcome in this case, and that therefore state courts are preempted by federal law from treating waived military retirement pay as divisible community property. The Court disagreed with respondents’ argument that Mansell was distinguishable based on the timing of the waiver in relation to the timing of the divorce decree: “the temporal difference highlights only that John’s military retirement pay at the time it came to Sandra was subject to later reduction.” The Court added that “the state court did not extinguish (and most likely would not have had the legal power to extinguish)” the future contingency of John’s waiver. Rather, the Court stated, “[t]he existence of that contingency meant that the value of Sandra’s share of military retirement pay was possibly worth less—perhaps less than Sandra and others thought—at the time of the divorce.” Ultimately, the Court explained, because “[s]tate courts cannot ‘vest’ that which (under governing federal law) they lack the authority to give,” the state’s attempt to avoid Mansell by construing the divorce decree as requiring John to reimburse or indemnify Sandra rather than dividing property was unavailing.
Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Alito, Sotomayor, and Kagan joined. Justice Thomas concurred, and Justice Gorsuch took no part in the decision or consideration of this case.