Divorce: States Cannot Divide Disability Pay

Anyone who was served in our armed forces deserves our respect. It is not an easy job and it is something that deserves our gratitude. The sad fact is, far too many veterans receive disability pay in addition to their military retirement pay. Of course, the government’s obsession with waste being what it is, veterans are not allowed to collect both their full retirement pay and disability pay if they have a service-related disability. Instead, they usually pick up their disability pay instead of part of their retirement pay because retirement pay is taxable but disability pay is not.

In the United States Supreme Court case of Howell v. Howell, John and Sandra Howell divorced in 1991. As part of the divorce, Sandra was supposed to receive half of John’s military retirement. The next year, John retired and started drawing his retirement. Sandra received half of it.

A few years later, the Department of Veterans Affairs found John to be partially disabled because of an injury while in service. Because of this injury, he was eligible for disability pay. He then decided to replace part of his retirement pay with disability pay.

Sandra, seeing that her money from the retirement pay was reduced, petitioned the court in her state to make her income from John’s retirement pay what it was before his disability. The state court decided that because of the long time that Sandra had been receiving those benefits that she should be awarded enough of the disability benefits to restore her income to its previous level. John appealed this decision to the United State Supreme Court.

The Supreme Court reversed the decision of the state court. Federal law does not count disability pay as “disposable pay” to be considered as part of a divorce. Because of this law at the national level, states do not have the power to award disability pay to spouses in a divorce.

If you are a veteran involved in a divorce, it is important to know what part of your income can be considered in the judgment and what cannot. If are in this situation, having a knowledgeable and experience divorce attorney on your side can be very helpful. Contact INGRAM LAW LLC at 205-335-2640 for help with your divorce case.