In Mansell v. Mansell, 490 U.S. 581 (1989), the U.S. Supreme Court held that a state divorce court cannot treat military retirement pay a veteran has waived to receive VA disability compensation as marital property subject to division.1Justia. Mansell v. Mansell Federal law lets state courts divide only “disposable retired pay,” and that term, by statute, excludes any portion of retired pay waived for VA disability benefits. Nearly four decades on, the rule still governs every military divorce where a service-connected disability is in play, and the Court reinforced it in 2017 in Howell v. Howell.
The Statute Behind the Case
The Uniformed Services Former Spouses Protection Act (USFSPA), codified at 10 U.S.C. § 1408, is what allows state courts to reach a military pension at all. It authorizes them to treat a service member’s retirement pay as property belonging to both spouses under state domestic relations law. But the authority is bounded by a defined term. Only “disposable retired pay” can be divided, and the statute arrives at that figure by subtracting several categories from total monthly retired pay, including any amounts waived to receive VA disability compensation or civil-service disability pay under Title 5 or Title 38.2Office of the Law Revision Counsel. 10 USC 1408 – Payment of Retired or Retainer Pay in Compliance With Court Orders
That subtraction is where the whole case turns. Waived pay is removed before you ever reach the pool that a divorce court is allowed to touch.
The Facts and Holding of Mansell
Gerald Mansell retired from the Army and began collecting both military retirement pay and VA disability benefits. In the couple’s California divorce, the state court treated his full retirement pay, including the portion he had waived for disability, as community property. The Supreme Court reversed.
The reasoning was textual. Congress had granted state courts authority over “disposable retired pay,” not over total retired pay, and the statute expressly took waived amounts out of that definition. The Court described the grant of authority as “both precise and limited.”1Justia. Mansell v. Mansell Anything outside the statutory definition, including pay waived for disability, sits beyond a state court’s reach.
The Court also rejected the argument that the USFSPA was just a garnishment statute leaving broader state property rights intact. Several subsections of § 1408(c) place substantive limits on state courts, and the Court found it implausible that every subsection except the one defining divisible pay was meant to preempt state law.1Justia. Mansell v. Mansell The result is a federal ceiling: service-connected disability benefits are protected from state-level property claims.
Why the Waiver Shrinks a Former Spouse’s Share
A veteran entitled to both military retirement pay and VA disability compensation generally cannot collect both in full. Federal law requires a dollar-for-dollar waiver of retired pay for every dollar of VA disability received.3Defense Finance and Accounting Service. VA Waiver and Retired Pay The veteran usually comes out ahead in net terms because VA disability pay is tax-free.
A quick example. A veteran with $3,000 in monthly retirement pay receives a VA rating worth $800 per month. The veteran waives $800 of retired pay, collects $2,200 in taxable retirement pay from DFAS, and receives $800 tax-free from the VA. Gross income is unchanged, taxes drop, and the divisible pool the former spouse can share in has fallen from $3,000 to $2,200. Under Mansell, the former spouse has no claim on the $800 that moved to the disability side of the ledger.
The problem compounds when the divorce is already final. A “frozen benefit” rule requires that divisions ordered before retirement be calculated using the member’s pay grade and years of service as of the divorce date, adjusted only for cost-of-living increases.2Office of the Law Revision Counsel. 10 USC 1408 – Payment of Retired or Retainer Pay in Compliance With Court Orders A later disability waiver can pull the actual retirement check below that frozen snapshot, and the former spouse’s dollar share drops with it.
Howell v. Howell and the Indemnification Question
After Mansell, some divorce lawyers tried a workaround. If a court could not divide the waived pay directly, maybe it could order the veteran to reimburse the former spouse for the reduction. Several state courts accepted the theory. The Supreme Court unanimously rejected it in Howell v. Howell, 581 U.S. ___ (2017).
Sandra Howell’s Arizona divorce decree awarded her a share of her husband John’s military retirement pay. Years later, John obtained a VA disability rating, waived part of his retired pay, and Sandra’s monthly check shrank. Arizona courts ordered John to indemnify her for the loss. The Supreme Court reversed, holding that a state court cannot order a veteran to indemnify a former spouse for retired pay lost to a disability waiver, whether the waiver happens before or after the divorce.4Justia. Howell v. Howell
The Court was direct about labels. Calling the order “reimbursement” or “indemnification” rather than “property division” was a semantic move and nothing more. Regardless of the form, such orders displace federal law.4Justia. Howell v. Howell
Howell did leave one avenue open. Family courts remain free to account for the possibility of a future waiver when calculating or recalculating spousal support. Property division is closed off; support calculations are not.
CRDP and CRSC After Mansell
Congress created two programs that partially soften the retirement-versus-disability trade-off, and each interacts with Mansell differently.
Concurrent Retirement and Disability Pay
Concurrent Retirement and Disability Pay (CRDP) lets certain retirees with a VA disability rating of 50 percent or higher collect both full retired pay and VA disability compensation without the dollar-for-dollar offset.5Office of the Law Revision Counsel. 10 USC 1414 – Members Eligible for Retired Pay Who Are Also Eligible for Veterans Disability Compensation Because CRDP restores retired pay rather than creating a new category of benefit, the restored amount flows back into disposable retired pay and can be reached by a court order dividing that pay.
Combat-Related Special Compensation
Combat-Related Special Compensation (CRSC) is different. It pays tax-free amounts to veterans whose disabilities stem from combat, combat-related operations, hazardous duty, or conditions simulating war. CRSC is not classified as retired pay. Defense Department program guidance states that CRSC is not subject to the provisions of 10 U.S.C. § 1408 governing division under court orders.6Defense Finance and Accounting Service. Combat-Related Special Compensation (CRSC) Program Guidance Under Mansell’s logic, CRSC replaces waived retired pay with disability compensation rather than restoring the retired pay itself, so it sits on the protected side of the line.
The choice between the two programs, when a veteran qualifies for both, can move real money. CRSC is still reachable by garnishment for child support or alimony, however.6Defense Finance and Accounting Service. Combat-Related Special Compensation (CRSC) Program Guidance A former spouse cannot claim it as marital property, but a court can factor it in when setting support.
Disability Pay Can Still Count as Income for Support
Mansell and Howell block property division of disability benefits. They do not make those benefits invisible for every purpose. In Rose v. Rose (1987), the Supreme Court held that VA disability compensation is intended in part for the support of a veteran’s dependents, and state courts can treat it as income when setting child support or alimony.
Federal regulations line up with that. VA disability compensation paid in lieu of waived military retired pay is subject to garnishment for child support and spousal support obligations.7eCFR. 5 CFR 581.103 – Moneys Which Are Subject to Garnishment The reach is narrow: only the portion that replaced waived retired pay can be garnished. If the veteran waived no retired pay, disability compensation is not subject to income withholding for support.8Administration for Children and Families. Income Withholding and Medical Support for Department of Veterans Affairs Benefits
What a Former Spouse Can Do
A few practical points fall out of the holding. Any share of retirement pay awarded in a divorce decree is only as stable as the veteran’s decision not to waive more of it for disability. Courts can build that risk into spousal support calculations, which Howell explicitly permits, but a property-division award has no similar flexibility once the decree is final.
The type of disability program matters too. CRDP at 50 percent or higher effectively neutralizes the waiver problem for the divisible pool. CRSC does not, because it replaces retired pay with a benefit the former spouse cannot reach as property. When a veteran is eligible for both, the election can shift the former spouse’s outcome significantly.
Finally, the property-versus-support line is where most remaining leverage sits. Disability income a court cannot touch as property can still be counted when setting alimony or child support. For a former spouse whose retirement share has been reduced by a post-divorce waiver, seeking a modification of spousal support is often the most realistic path, since indemnification is off the table after Howell.