Cox v. Cox

Background

A divorced spouse asked a California court to reopen her divorce decree so she could share in her ex-spouse’s military retired pay. This dispute arose after the Court’s earlier decision in McCarty v. McCarty said federal law barred state courts from dividing military pensions. Congress then passed the Uniformed Services Former Spouse’s Protection Act (USFSPA) to allow states to treat military retired pay as community property or as the member’s alone. California enacted a law returning to the pre-McCarty practice, but the California Court of Appeal held USFSPA is not retroactive for decrees finalized in the gap between McCarty and the federal law.

Reasoning

The central question is whether USFSPA should let former spouses set aside or modify divorce orders finalized after McCarty but before USFSPA’s enactment. Justice White, joined by Justice O’Connor, dissented from the Court’s decision to deny review. He notes that other state courts have disagreed about retroactivity (for example, Arizona and Delaware cases reached different results) and explains that the issue turns on how to interpret a federal statute. Because of the split among state courts and Congress’s stated concern for divorced military spouses, Justice White would have granted review to resolve the statutory question.

Real world impact

By denying review, the Court left the California appellate decision in place, so many former spouses whose decrees became final in that gap cannot reopen orders to claim military pension shares. The disagreement among state courts means outcomes can differ depending on where a divorced spouse lives. The dissent signals the question may return to the Court for a definitive, nationwide answer.

Dissents or concurrances

Justice White, joined by Justice O’Connor, dissented from the denial of review and would have granted the petition to resolve the retroactivity question.