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Benchmark Decision Relative to Military Divorce and Spousal Benefits

The U.S. Supreme Court recently ruled on a dispute over military benefits in a post-judgment military divorce matter between a 20-year Air Force vet and his ex-wife. It found that, once the vet had waived part of his retirement pay for disability benefits, his exspouse was no longer entitled to a part of that pay.

This benchmark decision relative to a military divorce and spousal benefits involved a divorce that took place in 1991. At the time, the divorcing couple agreed that the wife would receive half of the husband's military retirement pay. Once that kicked in, they each began receiving half of that pay.

Years later, however, the husband discovered that he had degenerative joint disease that was directly related to his service in the military. He applied for disability benefits through the Department of Veterans Affairs and was approved in 2005.

In order to avoid "double dipping," however, the vet was required to waive a portion of his retirement pay in exchange for his disability benefits. So, once the waiver became effective, the wife's portion of the military retirement pay dropped by $127 per month.

The wife asked for the situation to be reconsidered, and a law in the state they lived in seemed to touch on the issue. Ultimately, however, the state's highest court ruled that there was no state or federal law preventing the family court from ordering the husband to make up for the reduction in retirement pay.

He appealed, and ultimately the U.S. Supreme Court agreed to hear the case. Later, the high court decided simply to rule on the case without a hearing.

Even if a state law allowed the courts to make up for the waived retirement pay, the Uniformed Services Former Spouses' Protection Act does not, the court ruled.

The USFSPA is a law that addresses what rights military spouses have upon divorce, including eligibility for a portion of the service member's retirement pay, exchange, commissary and healthcare benefits. According to the Supreme Court, it specifically prohibits the sort of "making up" of retirement pay that the state courts contemplated.

The law allows a military vet's retirement pay to be divided during a divorce, wrote Justice Stephen Breyer, except for "any amount that the government deducts 'as a result of a waiver' that the veteran must make 'in order to receive' disability benefits."

If you're a member of the military or a military spouse and are getting a divorce, you probably realize these issues are complex and sometimes confusing. In this case, a state supreme court was apparently confused about the applicability of the USFSPA to a specific situation, and that shows why it's so important to work with an attorney who knows how the laws apply to military families.

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