Military retired pay is often the most substantial benefit accrued by a servicemember.   It is natural, therefore, that the division of military retired pay at divorce is often a source of dispute.  Your lawyer must fully understand the options and limitations of this and other military benefits in order to effectively represent you.    Perhaps the most important issue to address is the limitation on an award of disability pay as opposed to retired pay.

The servicemember has the unilateral right to choose receipt of a portion of the retired pay as disability.  If he/she does so, the “retired pay” portion of the benefit is reduced by the amount of disability pay, up to 50% of the full benefit.  Federal law prohibits state courts from awarding disability pay to a spouse as property.  Therefore, if the servicemember chose the disability option, any retired pay awarded to the former spouse in divorce would be reduced.

Divorce lawyers and judges have historically come up with ways to address this possibility.  However, the US Supreme Court recently ruled in Howell v. Howell  that state courts have no authority to award any portion of a disability waiver of retired pay to a military spouse.   The case is brand new and has not been completely analyzed yet.  However, it appears to prohibit at least one of the typical safeguards employed to avoid a reduction in the former spouse’s share of retired pay.   Many former military spouses may receive a rude surprise upon receipt of their benefits, according to the above scenario.

Based on the Howell decision, a simple division of military retired pay is likely no longer wise.   Each situation must  be studied carefully, incorporating long range health and retirement planning, by both the servicemember and former spouse.  You must discuss this development with your divorce lawyer to ensure your interests are adequately protected.