U.S. Supreme Court

Mansell v. Mansell (1989)

In direct response to McCarty v. McCarty, which held that federal law as it then existed completely preempted the application of state community property law to military retirement pay, Congress enacted the Uniformed Services Former Spouses' Protection Act), which authorizes state courts to treat as community property "disposable retired or retainer pay," specifically defining such pay to exclude any military retirement pay waived in order for the retiree to receive veterans' disability benefits. The Act also creates a mechanism whereby the Federal Government will make direct community property payments of up to 50% of disposable retired or retainer pay to certain former spouses who present state court orders granting such pay.

A pre-McCarty property settlement agreement between appellant and appellee, who were divorced in a county Superior Court in California, a community property State, provided that appellant would pay appellee 50 percent of his total military retirement pay, including that portion of such pay which he had waived in order to receive military disability benefits. After the Act's passage, the Superior Court denied appellant's request to modify the divorce decree by removing the provision requiring him to share his total retirement pay with appellee. The State Court of Appeal affirmed, rejecting appellant's contention that the Act precluded the lower court from treating as community property the military retirement pay appellant had waived to receive disability benefits. In so holding, the court relied on a State Supreme Court decision which reasoned that the Act did not limit a state court's ability to treat total military retirement pay as community property and to enforce a former spouse's rights to such pay through remedies other than direct Federal Government payments.

Held: The Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans' disability benefits. In light of the statute's limiting language as to such waived pay, the Act's plain and precise language establishes that Act grants state courts the authority to treat only disposable retired pay, not total retired pay, as community property.