How the Military Makes a Divorce More Difficult

Whether civilian or military, divorce is a difficult decision. But how does military divorce differ from civilian divorce? According to Higdon, Hardy & Zuflacht, L.L.P., “Military divorces are subject to greater scrutiny and regulation than their civilian counterparts,” since both the state and federal courts look at military divorce. Because of this, it is important to know your legal rights in cases of military divorce.

Supreme Court Ruling

Ameriforce explains how a recent Supreme Court ruling clarified property rights in military divorce settlements. The case involved John and Sandra Howell, an airforce couple, who divorced in 1991. In 1991, John was just one year away from retirement, and the divorce decree stated that Sandra would receive 50 percent of his military retirement pay.

John decided to give up $250 of his $1,500 retirement pay to receive that amount in tax-free disability benefits. In 2005, Sandra went to court, and an Arizona family court decided that Sandra should receive half of the $1,500 before the disability benefits. After appealing the decision, John took his case to the Arizona Supreme Court, which sided with Sandra on the basis that federal law “did not pre-empt the family court’s order.” However, the US Supreme Court overturned the Arizona Supreme Court decision this May.

Pros and Cons

What does this decision mean for the ex-spouses in military divorce? The Veterans of Foreign Wars (VFW) lauded the Supreme Court for “‘providing some much needed consistency’ in how the 1982 Uniformed Service Member’s Former Spouse Protection Act (USFSPA) is applied to divorce settlements nationwide.” Arizona was not the only state that required military retirees to pay for a former spouse’s lost retirement income based on a VA waiver.

Other organizations that support military spouses foresee ex-spouses receiving a smaller portion of military pensions since retirees are incentivized to waive military retirement pay for tax-free disability benefits. Lisa Colella, president and CEO of Healing Household 6, fears financial repercussions for ex-spouses, stating, “You will have all these specialty cases now where there is no way to determine them case by case…I think that is an unfair assessment for those families. Those families weren’t thought of when this ruling was made.’”

The Military Officers Association of America (MOAA) agrees with Colella that the ruling “clearly illustrates the unfairness” of reducing ex-spouse payout for VA disability compensation. Ising the Supreme Court ruling, MOAA is lobbying for a more fair solution for all parties involved.

While divorce is already difficult, this recent Supreme Court ruling makes it even more trying for the ex-spouses of military personnel. Although greater consistency is a positive, the overgeneralized ruling of the Supreme Court has serious consequences. As Mark Sullivan, a lawyer and retired Army Reserve JAG colonel, states, the ruling represents the “‘the death of indemnification,’ which is the ability of a court to increase a former spouse’s share of military retirement pay to make up for a loss in benefits if the service member elects to receive offsetting VA disability pay.”    

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