Free Phone Consultations:

Chicago Office - 312.360.0250

Skokie Office - 847.329.0101

Supreme Court Will Consider Military Divorce and Marital Benefits

Supreme Court Will Consider Military Divorce and Marital Benefits

By: M. Scott Gordon

Last month, the U.S. Supreme Court heard arguments in a military divorce matter that, regardless of the outcome, is likely to impact certain married couples who file for divorce in Chicago. In brief, the Supreme Court will be determining how military benefits will be paid to the non-military spouse in the event of divorce. It is important to note that, when one spouse is in the military and the marriage dissolves, the non-military spouse still can be entitled to receive certain benefits (such as military retirement benefits) from the military spouse as part of property distribution. However, the distribution of such benefits can get tricky when the military spouse waives some of those retirement benefits in order to be eligible for different military benefits, thereby reducing the benefit provided to the non-military spouse. That is what is at issue in this case.

The case is complicated, and we would like to break it down for you to help clarify what is at stake in the Supreme Court’s decision.

Facts of the Case in Howell v. Howell

The present case, Howell v. Howell (2017), deals with a dispute between a divorced husband, John, and ex-wife, Sandra. John served for 20 years in the U.S. Air Force. The couple got divorced in 1991, and when the court made a determination about the division of marital property, it assigned half of John’s military retirement pay to Sandra. Since John served most of his time in the military during his marriage to Sandra, his retirement pay commenced in 1992, the year after their divorce was finalized. Thus in 1992, Sandra began receiving her half of John’s military retirement pay.

However, in 2005, John decided to waive a portion of his retirement pay in order to receive disability benefits (the latter of which are not taxable). As a result, Sandra’s portion of John’s monthly military retirement pay was reduced by about $125 each month. At the same time, John began receiving that additional amount through the disability benefits he opted for. Sandra filed a lawsuit seeking to have her monthly payments returned to their original amount, plus compensation for the money she lost each month after John began receiving disability benefits.

How the Law Divides Military Benefits

In order to consider how the Supreme Court might rule on the case, it is important to understand the laws that allow Sandra to receive part of John’s military retirement pay at all. Under the Uniformed Services Former Spouses’ Protection Act (a federal law), states like Illinois are permitted to divide military retirement pay as part of property distribution in a divorce. The law specifically allows the state to consider “disposable retired pay” as marital property, and thus eligible for division in a divorce. The federal law defines “disposable retired pay” as “the total monthly retired pay to which a member [of the military] is entitled,” minus amounts that may be deducted for other reasons, including for disability benefits. As such, the law makes clear that “disposable retired pay” is defined as the amount of retirement pay not including whatever portion is deducted for disability benefits.

Therefore, the Supreme Court will need to decide whether the initial calculation of the “disposable retired pay”—which was not reduced for disability benefits—is the amount to which Sandra is entitled, or whether the property division order can, in effect, be amended to account for the reduction in John’s “disposable retired pay” as a result of his disability benefits.

Discuss Your Case with a Divorce Lawyer in Chicago

For divorcing or divorced military couples, the outcome of the case could have a big impact on future property division orders in the Chicago area. If you have questions or concerns, a divorce attorney in Chicago can assist you. Contact M. Scott Gordon & Associates today to discuss your case.