Howell v. Howell
The Supreme Court ruled that federal law bars state courts from ordering a veteran to reimburse or indemnify a former spouse for the drop in her share of military retirement pay after he waives part of it to receive disability benefits.
The decision extends the Court's 1989 ruling in Mansell v. Mansell to reimbursement orders issued after a waiver, closing a workaround some state courts had used to get around the federal limit on dividing disability-related retirement pay.
“State courts cannot "vest" that which (under governing federal law) they lack the authority to give.”
Explaining why calling the ex-wife's interest 'vested' did not overcome the federal preemption rule.
How it got here: An Arizona family court ordered John to make up Sandra's lost share; the Arizona Supreme Court affirmed, and John asked the U.S. Supreme Court to review that ruling.
The Case in Depth
What happened
John and Sandra Howell divorced in 1991 while John served in the Air Force; the decree gave Sandra half of John's future military retirement pay. After John retired and began sharing that pay with Sandra, he was later found partly disabled and waived about $250 a month of retirement pay to receive tax-free disability benefits instead, cutting what each of them received.
The question before the Court
If a veteran waives part of his retirement pay years after divorce to get disability benefits, can a state court force him to pay his ex-wife extra to make up her lost share?
Why it matters
Divorced spouses of military retirees can no longer count on state courts to restore money lost when a veteran later trades taxable retirement pay for tax-free disability benefits. Family courts can still account for this risk up front, when setting the original property division or spousal support, but they cannot order a veteran to make up the difference after the fact.
What changes now
The case goes back to the Arizona courts, which can no longer order John to reimburse Sandra for the reduction caused by his disability waiver. The ruling leaves state family courts free to anticipate this risk when they first divide property or set spousal support, by building in a cushion for the possibility of a future waiver, but they cannot order a make-up payment after a waiver has already occurred.
What this does not decide
The Court did not decide whether family courts can factor in the possibility of a future disability waiver when they first divide property or set spousal support amounts — it noted courts remain free to do that, but did not resolve how or when.
Concurrences and dissents
Concurrence — Justice Thomas
Justice Thomas joined the entire opinion except its passing reliance on 'purposes and objectives' pre-emption, a doctrine that asks whether a state law obstructs the goals behind a federal law. He has previously argued this doctrine is not a legitimate basis for finding preemption, and he noted it was not necessary to reach the Court's judgment in this case.
How the Court got there
The legal reasoning, step by step
- The Court applied its 1989 ruling in Mansell v. Mansell, which held that a federal statute completely preempts — that is, overrides — state authority to treat military retirement pay that a veteran waives for disability benefits as community property divisible at divorce.
- The Court reasoned that an order requiring a veteran to reimburse or indemnify his former spouse for the exact dollar amount she lost when he waived retirement pay has the same practical effect as dividing the waived pay itself, regardless of the label a state court gives it.
- The Court rejected the argument that timing mattered — that Mansell only applies when the waiver happens before the divorce — reasoning that a spouse's awarded share of retirement pay is always contingent on the possibility the veteran might later waive some of it to get disability benefits.
- The Court reasoned that describing the spouse's interest as 'vested' did not change the analysis, because a state court cannot vest a right in property it never had the federal authority to divide in the first place.
- Because the reimbursement order restored, dollar for dollar, exactly the waived portion of retirement pay that federal law excludes from state division, the Court concluded the order was preempted just as a direct division of that pay would have been.
Doctrinal impact
Cases affected by this decision
Reaffirms Mansell v. Mansell (490 U.S. 581)
The Court relied on and extended Mansell's rule that waived, disability-related retirement pay cannot be divided as community property.
Reaffirms McCarty v. McCarty (453 U.S. 210)
The Court cited McCarty's reasoning about federal interests as applying with even more force to disability pay.