On Monday the federal government filed, at the court’s invitation, a brief in Howell v. Howell, a dispute between a divorced couple over the wife’s share of the husband’s military retirement pay. When the government recommends that the justices review a case, it generally does so in part because it believes that the lower court’s decision was incorrect. Here, however, the government took a different tack: It agreed with the lower court’s ruling but nonetheless urged the justices to grant review to resolve a conflict among state supreme courts on the question presented by the case.
The parties to the case, John and Sandra Howell, divorced in 1991. As part of the divorce, Sandra was awarded 50% of John’s military retirement pay, which began the following year. In 2005, John – who served in the U.S. Air Force for 20 years – opted to waive part of his retirement pay in favor of disability benefits. Such a choice is common when it is available, the federal government explains, because disability benefits (unlike retirement pay) are not taxable. However, John’s choice also reduced, by approximately $125 per month, the amount of money that went to Sandra as her share of John’s retirement pay.
Sandra went to court, seeking both to have her monthly payments restored to the amount that she had received before John’s waiver and to be reimbursed for the amount she believed that she was owed for the lower payments in the past. The Arizona courts agreed with her, and earlier this year, John asked the U.S. Supreme Court to review the Arizona Supreme Court’s decision in Sandra’s favor. In April, the justices asked the federal government to weigh in, which it did in a brief filed on Monday.
The issue before the court centers on the interpretation of the Uniformed Services Former Spouses’ Protection Act, a 1982 law that authorizes state courts to divide up military retirement pay in a divorce. Specifically, the law allows state courts to treat “disposable retired pay” as either the service member’s property or the property of both the service member and the member’s spouse, depending on state law. The term “disposable retired pay” is in turn defined as the service member’s retired pay, minus any portion of that pay waived in favor of disability benefits. This means, John argues, that he can’t be required to pay Sandra her share of the retirement pay that he now receives as a disability benefit.
The federal government disagrees, telling the justices that the Arizona Supreme Court’s decision is correct. In its view, the key fact is that John waived his retirement pay in favor of disability benefits fourteen years after the couple divorced. Nothing in the USFSPA, it contends, bars a state court from ordering a service member like John to pay a former spouse like Sandra her share of retirement pay that he has waived, when the divorce agreement gave her a vested interest in the retirement pay. All Sandra is trying to do, the government suggests, is avoid having the money that John agreed to pay her at the time of the divorce reduced by a choice that John made years after the divorce. But, even though the Arizona court’s ruling should stand, the government continues, the justices should still grant review to resolve what it describes as “disuniformity” among state supreme courts on this important and frequently recurring issue.
The justices will likely consider John’s petition at a conference in mid-November. If they decide to grant review, the case would almost certainly be briefed and argued during the court’s current term.