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Military divorce reaches Supreme Court

Spouses who serve in the military must follow both federal law and Tennessee statutes while undergoing divorce. Although it addressed an appeal from Arizona, the U.S. Supreme Court's recent opinion on retirement and disability pay and divorce settlements that helps military retirees and can impact and can impact their families in at least 30 states.

This case concerned a couple who divorced in 1991 after being married for 13 years. After the husband retired from the Air Force one year later, his former spouse began receiving half of his retirement pay.

The husband later applied for and received a Veteran's Administration 20 percent disability rating for an injury from his military service. To receive VA monthly disability payments of $262.00, he waived an equal amount of retirement pay. His former wife's share of that retirement pay subsequently dropped to $131.00 per month after he received disability payments. Arizona courts ruled in the wife's favor and ordered the husband to restore the lost retirement pay.

The U.S. Supreme Court reversed and unanimously ruled, however, that the federal law supersedes any state laws treating retirement pay as property that can be divided in a divorce. The Court dismissed arguments that reduction in these benefits may violate any settlement agreement between the parties. The possibility of retirement of retirement pay decreasing in the future, although uncertain, is still a contingency that exists when the divorce decree is issued.

To address this ruling, state courts may have to assure the protection of the value of military retirement pay in their original decree and assure that the payments continue to the former spouse. However, judges cannot restore the lost pay with a new or revised property right in the future. Legal experts are unsure whether this opinion will lead to the reopening of divorce settlements. Family courts usually do not reopen civil cases that were fully litigated for re-litigation.

Military spouses in Tennessee and other states that allow alimony may also consider seeking at least a small sum in alimony in the decree. This may allow a spouse to seek increased payments if the other retired spouse declines any retirement pay to accept VA disability payments.

Spouses should seek advice on division of military retirement pay, other divorce issues and their options. An attorney may help couples undergoing divorce seek their rights under federal and Tennessee laws.

Source: Kitsap Sun, "Court decision could change military divorce settlements," By Tom Philpott, June 2, 2017

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