SCOTUS Begins Hearing on Division of Retired Pay

March 24, 2017

A case involving the Uniformed Services Former Spouse Protection Act (USFSPA), a controversial 1982 law, is being heard before the Supreme Court. The case will determine the extent of a state court's legal authority to divide military retired pay in a divorce where the former servicemember waives a portion of military retired pay in favor of VA disability compensation. 

Lt. Col. Aniela Szymanski, USMCR, MOAA director of government relations for veterans benefits, attended the Supreme Court oral argument March 20 in the case of Howell v. Howell

In the current case, a family court granted the former spouse 50 percent of the servicemember's retirement pay. Years later, the retiree received a VA disability rating and waived a portion of military retired pay to receive the tax-free VA disability compensation instead. 

As a result, the servicemember's military retirement pay was reduced; the former spouse took the retiree to court to get her portion of that - in this case, $152 a month - back. 

USFSPA is a controversial law in the military community because it allows courts to treat military retired pay as property in the case of a divorce. 

Adam Unikowsky, the attorney for the veteran, says the letter and spirit of USFSPA were followed in this case. Disability pay, he argued, is paid to the veteran for injuries suffered in service and to compensate for lost earning potential. 

Previously, a lower-level court in Arizona held that, even though the reduction in retired pay was the result of a VA disability, the retiree still had to pay the $152 per month to the former spouse. The court reasoned that the former spouse had a “vested interest” in the retired pay and had come to rely on the full amount. 

During the March 20 proceedings, Justice Ruth Bader Ginsburg said, “Alimony is something that one spouse pays to the other based on economic need. The division of property gives a spouse the property outright. It's hers. It's not something that she is getting from somebody else. It is hers, because there's an enormous difference between equitable division of property and alimony.” 

The justices asked questions aimed at the implications of how varying legal interpretations of USFSPA will affect those who have come to rely on the income provided by a portion of their former spouse's military retirement. 

“How consequential is the issue before us?” Justice Ginsburg asked. “Because if you're right, then in all future divorce settlements, they won't say half of the military retirement pay. They'll give a dollar amount which is equal to what the military retirement pay is before any disability payment kicks in.” 

Chief Justice John Roberts was more direct in his skepticism. “You have a law that says you can't divide disability pay, and yet, you say it's okay to say, 'Well, I'm not going to divide it, but I'm just going to award you an amount equal to what it would be if I divided it.' … That's the sort of thing that gives law a bad name. It makes a charade out of the statute.” 

The court is expected to rule on the case later this year. When a decision is issued, MOAA will provide an update.



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