Supreme Court Rules Military Disability Benefits Not Subject to Divorce Sharing – Los Alamos Reporter


The state Supreme Court today ruled that courts in New Mexico cannot order a veteran to reimburse a former spouse for the portion of a divorce agreement from the military retirement allowance that has ended when the veteran elected to receive disability benefits.

In a unanimous decision, New Mexico’s highest court ruled that federal law prohibits state courts from enforcing provisions of a 2006 divorce agreement that called for Angela Russ to receive 50% of military pension of Jeffery Russ won during their marriage. However, the Supreme Court observed that a trial court could consider other legal options to possibly adjust the financial support the veteran provides to his ex-spouse.

Eight years after the Russ’ divorce, the veteran waived his retirement pay in order to receive a battle-related disability award. As a result, his ex-wife lost her share of the pension benefits and she applied to a district court to order her ex-husband to reimburse her for the reduced alimony.

The Supreme Court overturned a state appeals court decision and Bernalillo County District Court order for payment of $ 22,243 to Russ’s former wife.

The judges found that the 2017 U.S. Supreme Court ruling in an Arizona case, Howell vs. Howell, applied retroactively to the New Mexico couple’s case and prevents states from treating abandoned military retirement benefits as common property that can be divided in divorce, regardless of whether the waiver came after a divorce decree.

The Court of Appeals had determined that the 2017 decision of the nation’s highest court did not apply retroactively to divorce cases in New Mexico.

In an opinion written by Justice David K. Thomson, the Supreme Court recognized that it “may seem unfair” that a former spouse could lose income from a divorce agreement because the veteran decided to ” accept disability benefits. “Yet New Mexico courts are not powerless to seek a just result,” the judges said.

The court ordered the referral of the divorce dispute to the district court for further processing, including consideration of whether the ex-spouse’s financial support should be recalculated due to the loss retirement allowance. Under federal law, the judges noted, military disability benefits can be viewed as a source of income for family support.

“The district court should not base its decision on the need to compensate the spouse or replace his share of the veterans’ pension,” the court said. “Instead, the district court should direct its attention to” family support obligations [which] are deeply rooted moral responsibilities rather than an agreement regarding the division of community property.

About Antoine L. Cassell

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