Supreme Court Sides with Veterans in Divorce Cases

Judge Gerald A. Williams
North Valley Justice of the Peace

In December 2015, the Supreme Court of Arizona held, unanimously, that in addition to receiving a share of the military member’s pension, a former spouse could also receive a share of the military member’s disability payments. Last month, the U.S. Supreme Court unanimously reversed this decision. Some background is required. 

A federal law passed in 1982, called the Uniformed Services Former Spouses’ Protection Act (USFSPA), authorizes Family Court judges to divide a veteran’s military retired pay and give a portion to his ex-wife. In some cases, depending on the length of the marriage, the former spouse may also be eligible to receive access to military medical care, to military exchanges (e.g. BX), and to commissaries.

As a general rule, any retired servicemember who also receives VA disability compensation has an amount equal to the VA compensation deducted from his or her military retired pay. Such an offset is often automatic; but it generally helps the veteran because VA compensation benefits are tax-free. 

Any judge advocate who provides legal assistance long enough will, at some point, have a former spouse come in and complain that her ex-husband just received a 30% VA disability rating and now she is entitled to only half of 70% of his military pension. This type of issue was what recently went up to the U.S. Supreme Court.

In the Arizona case, the former spouse was upset that the payments she received due to her husband’s military service were reduced by $127.50 per month. The Arizona Supreme Court held that both federal and state law allowed a Family Court judge to order that the husband make up that difference because his wife had a vested interest in the full amount of his retired pay. 

The U.S. Supreme Court reversed. Justice Breyer’s opinion noted that state courts cannot vest something that they lack the authority to give. He also wrote that states cannot avoid federal case law and the requirements of USFSPA by describing a Family Court order as an order merely requiring reimbursement. 

This is a good example of an appellate case that, even though it involves an Air Force veteran, will fly under the radar for everyone except military attorneys, divorce attorneys, and Family Court judges.  It has real world consequences for many, even if it will never be a page one story in a newspaper.

Judge Gerald Williams is the Justice of the Peace for the North Valley Justice Court. His column appears monthly in The Foothills Focus.