March 20, 2017
Uniformed Services Former Spouses' Protection Act
authorizes States to treat veterans' "disposable
retired pay" as community property divisible upon
divorce, 10 U.S.C. §1408, but expressly excludes from
its definition of "disposable retired pay"
amounts deducted from that pay "as a result of a
waiver . . . required by law in order to receive"
disability benefits, §1408(a)(4)(B). The divorce
decree of petitioner John Howell and respondent Sandra
Howell awarded Sandra 50% of John's future Air Force
retirement pay, which she began to receive when John
retired the following year. About 13 years later, the
Department of Veterans Affairs found that John was
partially disabled due to an earlier service-related
injury. To receive disability pay, federal law required
John to give up an equivalent amount of retirement pay. 38
U.S.C. §5305. By his election, John waived about $250
of his retirement pay, which also reduced the value of
Sandra's 50% share. Sandra petitioned the Arizona
family court to enforce the original divorce decree and
restore the value of her share of John's total
retirement pay. The court held that the original divorce
decree had given Sandra a vested interest in the prewaiver
amount of John's retirement pay and ordered John to
ensure that she receive her full 50% without regard for the
disability waiver. The Arizona Supreme Court affirmed,
holding that federal law did not pre-empt the family
A state court may not order a veteran to indemnify
a divorced spouse for the loss in the divorced spouse's
portion of the veteran's retirement pay caused by the
veteran's waiver of retirement pay to receive
service-related disability benefits. This Court's
decision in Mansell v. Mansell, 490 U.S. 581,
determines the outcome here. There, the Court held that
federal law completely pre-empts the States from treating
waived military retirement pay as divisible
property. Id., at 594-595. The Arizona Supreme
Court attempted to distinguish Mansell by
emphasizing the fact that the veteran's waiver in that
case took place before the divorce proceeding while the
waiver here took place several years after the divorce.
This temporal difference highlights only that John's
military pay at the time it came to Sandra was subject to a
future contingency, meaning that the value of Sandra's
share of military retirement pay was possibly worth less at
the time of the divorce. Nothing in this circumstance makes
the Arizona courts' reimbursement award to Sandra any
the less an award of the portion of military pay that John
waived in order to obtain disability benefits. That the
Arizona courts referred to her interest in the waivable
portion as having "vested" does not help: State
courts cannot "vest" that which they lack the
authority to give. Neither can the State avoid
Mansell by describing the family court order as an
order requiring John to "reimburse" or to
"indemnify" Sandra, rather than an order dividing
property, a semantic difference and nothing more.
Regardless of their form, such orders displace the federal
rule and stand as an obstacle to the accomplishment and
execution of the purposes and objectives of Congress.
Family courts remain free to take account of the
contingency that some military retirement pay might be
waived or take account of reductions in value when
calculating or recalculating the need for spousal support.
Here, however, the state courts made clear that the
original divorce decree divided the whole of John's
military pay, and their decisions rested entirely upon the
need to restore Sandra's lost portion. Pp. 6-8.
238 Ariz. 407, 361 P.3d 936, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and Kennedy, Ginsburg, Alito, Sotomayor, and
Kagan, JJ., joined. THOMAS, J., filed an opinion concurring
in part and concurring in the judgment. GORSUCH, J., took no
part in the consideration or decision of the case.
federal statute provides that a State may treat as community
property, and divide at divorce, a military veteran's
retirement pay. See 10 U.S.C. §1408(c)(1). The statute,
however, exempts from this grant of permission any amount
that the Government deducts "as a result of a
waiver" that the veteran must make "in order to
receive" disability benefits. § 1408(a)(4)(B). We
have held that a State cannot treat as community property,
and divide at divorce, this portion (the waived portion) of
the veteran's retirement pay. See Mansell v.
Mansell, 490 U.S. 581, 594-595 (1989).
case a State treated as community property and awarded to a
veteran's spouse upon divorce a portion of the
veteran's total retirement pay. Long after the divorce,
the veteran waived a share of the retirement pay in order to
receive nontaxable disability benefits from the Federal
Government instead. Can the State subsequently increase, pro
rata, the amount the divorced spouse receives each month from
the veteran's retirement pay in order to indemnify the
divorced spouse for the loss caused by the veteran's
waiver? The question is complicated, but the answer is not.
Our cases and the statute make clear that the answer to the
indemnification question is "no."
Federal Government has long provided retirement pay to those
veterans who have retired from the Armed Forces after
serving, e.g., 20 years or more. It also provides
disabled members of the Armed Forces with disability
benefits. In order to prevent double counting, however,
federal law typically insists that, to receive disability
benefits, a retired veteran must give up an equivalent amount
of retirement pay. And, since retirement pay is taxable while
disability benefits are not, the veteran often elects to
waive retirement pay in order to receive disability benefits.
See 10 U.S.C. §3911 et seq. (Army retirement
benefits); §6321 et seq. (Navy and Marines
retirement benefits); §8911 et seq. (Air Force
retirement benefits); 38 U.S.C. §5305 (requiring a
waiver to receive ...