SCOTUS BLOG summarized and commented upon the oral arguments presented Monday, March 20 in Howell v Howell.
Michigan's position thus far on military retirement divisions at the time of divorce is consistent with the arguments of Mrs. Howell's attorneys and also the Amici Department of Justice. When a spouse elects to draw a disability benefit, his or her "military retired pay" is reduced dollar for dollar. However, a trial court may do one of several things to make sure that a military spouse--many of whom have sacrificed career options that would have allowed the spouse to accumulate a retirement, many of whom have contributed in many ways to the career of his or her spouse--obtains indemnification and an equitable distribution of marital assets where the election of disability pay and reduction in former spouse's share occurs after the entry of the Judgment of Divorce.
For most military families, the retirement is the single most valuable asset they own. They may own little more than that. This is a very important issue that will affect spouses and minor children of the family. Where the problem lies is with those Judgments of Divorce that divided the retirement during an earlier divorce and where, after the divorce, the spouse elects disability pay that either reduces significantly or that completely eliminates the property.
Petitioner Mr. Howell's Brief on Appeal to the U.S. Supreme Court may be read here: Download Brief of Petitioner Mr. Howell
The VFW filed an Amicus Brief for the Veterans of Foreign Wars Supporting Petitioner Mr. Howell. Download Amicus.Brief.VFW for Mr. Howell
Respondent Mrs. Howell's Brief may be read here: Download Brief of Respondent.Mrs. Howell
The Department of Justice filed a Brief for the United States as Amicus Curiae Supporting Respondent Mrs. Howell. Download Amicus.Brief.DOJ for Mrs. Howell
The DOJ articulated the following arguments in favor of a trial court's consideration of alternative ways to do equity--to do the fair thing--in taking into consideration property and support provisions that provide a divorced spouse with her fair share of a military retirement earned during the marriage. The message of the DOJ was this:
1. [Congress has carefully] fashioned the protections afforded to veterans’ disability benefits, and has made clear that those benefits are intended in part to support the veteran’s family. With respect to the veteran’s support obligations to his children and former spouse, Congress has chosen to treat disability benefits received in lieu of military retirement pay like a veteran’s other income, and has not shielded them from enforceable support orders. And while the anti-attachment statute, 38 U.S.C. 5301, may prevent direct attachment of a veteran’s disability benefits, see Part D, infra, Congress has not otherwise limited state courts from ordering indemnification based on a waiver of military retirement pay if the veteran has other sources of income or property that may be used to satisfy the court order.
2. Allowing indemnification orders in circumstances like these will not lead to anomalous outcomes. The approach taken by the Arizona courts in this [Howell] case, under which petitioner was ordered to indemnify respondent for the economic loss she suffered as a result of petitioner’s post-divorce waiver of military retirement pay, does not create the stark economic discrepancy between pre- and post-divorce waivers that petitioner’s hypotheticals suggest (see Br. 32-33, 47-49).
The SCOTUS Blog discussing the oral arguments may be found at this link. http://www.scotusblog.com/case-files/cases/howell-v-howell/ This is an interesting read. Not surprising, Justices Ginsberg and Sotomayer asked questions that indicated support for the former spouses.