Mississippi Military Divorce & Disability Pay
In September, 2012, there was news coverage of a Mississippi military divorce case where the Mississippi Supreme Court reversed a Lamar county decision concerning division of military disability benefits.
In the case of Tonya Mallard v. James Mallard, Tonya Mallard received a property settlement agreement of 40 percent of James Mallard’s “disposable military retirement pay” for 10 years.
“Following the divorce, court documents show Mallard elected to adopt a 60 percent disability rating as part of his retirement pay. He did not provide any of the disability benefits to his ex-wife.” (see source
Tanya Mallard sued for $21,000 lost due to the conversion of retirement pay to disability pay, but the court (Presiding Justice George C. Carlson Jr.) ruled that “Whatever the equities may be, state law is pre-empted by federal law, and thus, state courts are precluded from ordering distribution of military disability benefits contrary to federal law.” (Case cited: USFSPA 1989 U.S. Supreme Court ruling that federal law does not permit state court divorce decrees to divide military service members’ retired disability benefits.)
There are several outstanding questions making it difficult to form an opinion on the Mississippi case. Two obvious ones are:
- Was the service member 60 percent disabled at the time of divorce?
- Was this case about including the disability pay for the calculation of alimony or the calculation of divisible retirement pay?
The relevancy of these issues are discussed in Military Divorce Tips
Alimony or Division of Military Retired Pay
Federal law excludes the division of military retired disability pay from the computation of property division. There is no mention of excluding this disability pay for the requirement for a Veteran to support his or her family (alimony and child support). (Source: Rose v. Rose U.S. Supreme Court 1987)
This brings us back to whether you, the courts, and/or the Federal government view the division of retired pay is alimony or property.
By using the USFSPA Federal law to divide the military retirement pay, one can conclude that Mississippi is declaring the Mallard division a property division. Therefore, Internet articles reporting this as an exclusion of disability pay for Alimony computation are misleading.
It’s possible the Mallard decree uses the word alimony (I don’t know), but if this was about alimony, then it would seem Presiding Justice George C. Carlson Jr.’s ruling was based on misinformation. The USFSPA should not be used in alimony arguments.
If it was not alimony, then before making an opinion, we would like to know if the 60 percent disability rating was in place at the time of divorce or if disability was a tool used to circumvent the former military spouse’s receipt of a division of retired pay.
Lessons Learned Mallard v Mallard Mississippi 2012 Divorce
What is clear is how important the wording of a military divorce decree can be.
- Alimony:Should be a clear and distinct award separate from retired pay
- Division of Retired Pay:Should be a separate award clearly written an not governed by alimony laws
- Indemnification Clause: Military spouses should include an indemnification clause in their decrees to adjust for any conversion of the division of military retired pay into disability pay
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Self righteous-hmm, no it is cellad being able to take care of myself. You allowed youradself to be outaddated of skills. I had 2 chiladdren, worked F/T and worked so that I was a conadtributading memadber of the houseadhold. If I wanted to play the pity party-I was 27, diagadnosed with RA and unable to walk at times, but by golly, I got my butt up out of bed, got my kids off to dayadcare, and went to work everyadday. What is wrong with workading from home? When you finanadcially conadtribute, then a disadcusadsion can take place. We are not livading back in the day. It takes 2 to make a famadily finanadcially sound, and you chose to not conadtribute. You CAN still work and still take care of kids, and still do launaddry, and still help with homeadwork. I did it all and so can you. My most outadspoadken point is that women should learn to take care of themadselves. Don’t allow youradself to live withadout opporadtuadniadties. Maradriages are a no fault typadiadcally and your comadment of you not wantading to leave, makes me believe that is where you felt so comadpelled to ask for his retireadment. By golly it wasn’t what you wanted so he was going toa0pay!!!
State court violation Separation of Powers DISABLED VETERANS
As proven in court many times over, and it’s obvious, that a veterans disability compensation is considered a major change in income. Even though, due to service connected injuries, i.e., a veteran’s loss both legs, part of multiple injuries suffered, one state, the State of Utah, adding insult, other states not so forthright, has come right out, and legislated this compensation as part of it’s law. Explicitly clear in that an ex-spouse is to be compensated for the disability compensation received by the disabled veteran. (Utah Title 30, Chapter 3, Section 5 (g)). To the disabled veteran, the court, it’s officers and ex-spouse the message of this legislation is quite clear, and that what follows matters not.
The issue is VA medical disability compensation, the property rights of the disabled veteran,….
///THIS COMMENT HAS BEEN EDITED IN ACCORDANCE WITH OUR COMMENT POLICY – (Too Long; you may resubmit in shorter length and we will delete this one)////
…Which leaves the question, alimony reform for disabled veterans when is that going to happen? Support for disabled veterans is all that is needed.
William Heino Sr.
To “Another Former Military Spouse” –
You may THINK you “deserve” every bit of “your” share – but the law and a US Supreme Court decision that created military retired pay is stringently specific that military retired pay is the SOLE ENTITLEMENT of the military member and has NO likeness to jointly earned community property ! Too bad, so sad that your former military spouse walked out on you – so now you’re a scorned spouse – just like “Doris Mosley” – get real, lady and GET A REAL JOB ! ! ! ! !
It’s not being greedy, had they stayed married everyone would be reaping the benefit since they divorced he should have to pay his portion of retirement. And my former military spouse filed for divorce so he could get married 10 days after so yes I deserve every bit of my share. And he too tried to circumvent his retirement by getting disability, but guess what it didn’t work.
You really have to look at the stipulations that are placed on the military member only. The former spouse is not beheld to any of these obligations but is still awarded the pay.
Thats a clear and concise form of discrimination. Only the veteran/retiree is entitled to the pay. The legislative alchemy of the USFSPA enacted by Congresswoman Schoeder should be transparent enough to disgust even the most jaded of citizens.
amen. They are all greedy former spouses that think they are entitled to their share for life. BS
This is not about being greedy. It comes down to how one views the division of disposable retired pay. Those that view the division as property (a marital asset), tend to believe it should be for life. Those that view it as support, tend to believe the duration of the division should be limited.
It IS EXACTLY about being G-R-E-E-D-Y ! ! !
Why would a former spouse demand they get a share of a retired military member’s current pay when the law says that military retired pay is current income? Therefore, since it IS current pay, it can and must be used to calculate alimony, just as if the member was still on active duty – which tey are, by law, just at a reduced level ! At least as alimony, it can be prevented from being a lifetime BLOOD-SUCKING LEACH upon the retiree’s sole and singular entitlement !