High Court to Wade Into Military Divorce Case

(CN) – The U.S. Supreme Court has agreed to decide whether federal law bars a state divorce court from ordering a veteran to make up deductions in his military retirement pay so that his former spouse still receives the same amount she was originally decreed.

The high court’s grant of certiorari stems from a decades-old divorce case in Arizona, involving a member of the Air Force and his former wife. Under federal law, the spouse of a service member is entitled to 50 percent of future retirement pay – which the former wife began receiving when the airman retired in 1992.

In 2005, however, the airman was diagnosed with degenerative joint disease related to his military service. The Department of Veteran Affairs awarded him disability payments, but to prevent double-dipping retired veterans must forgo a portion of their retirement pay equal to the amount of the disability payment.

The Defense Finance and Accounting Service accordingly reduced the airman’s monthly retirement payment – which meant the former wife’s share was reduced as well. She sued, asking the court to order the airman to make up disability reduction of his retirement pay so that she would receive the full 50 percent she was promised in their divorce decree.

The Arizona family court held that she had a vested right to half the airman’s retirement pay, and that the airman’s decision to waive part of it in favor of disability pay could deprive her of that right. The court also awarded her some but not all of the back pay she requested.

A state appeals court agreed, but for a different reason: it held that an Arizona law barring family courts from making up reductions in military retirement pay by awarding ex-spouses other assets – the law the airman relied on in fighting his ex’s challenge – does not apply to post-decree enforcement proceedings at all.

The Arizona Supreme Court affirmed the family court’s ruling, finding that federal law guarantees the ex-wife’s right to half of the airman’s full retirement pay and that the state law – which was enacted well after she gained a vested right to half the pay – had no bearing in the case.

Now 25 years after the couple divorced, the nation’s highest court agreed late Friday to take up the airman’s case to answer this question: “Whether the Uniformed Services Former Spouses’ Protection Act preempts a state court’s order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s portion of the veteran’s military retirement pay, where that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability.”

Per the custom, the justices took up the case without comment beyond the question they intend to resolve.

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