Justices Rule Against Ex-Military Wives : Hold Divorced Husbands Do Not Have to Share Disability Pay

In a setback for the former spouses of military personnel, the Supreme Court ruled Tuesday that a retired serviceman may keep his disability pay for himself.

The 7-2 ruling overturns a California court order requiring that all military retirement pay be split evenly when a couple divorces.

Lawyers say that the high court ruling could reopen thousands of divorce cases involving retired servicemen who get disability benefits.

Prayers Banned

Also, the justices let stand a ruling that a public high school in Georgia may not begin its football games with a religious invocation. An appellate court in Atlanta said last year that such invocations are unconstitutional because they endorse religion (Douglas County School District vs. Jager, 88-1610).

In the military retirement case, the justices based their decision on a 1982 law called the Former Spouses Protection Act. In 1981, the high court in a much criticized ruling, also in a California case, had said that federal law did not permit ex-wives to get an equal share of their husband’s military retirement pay.

In the hastily enacted 1982 measure, Congress sought to overturn that finding by declaring that divorcees in states such as California are entitled to half of their husband’s “disposable retired” income from the military. But the law defined “disposable” income in a way that excludes disability pay received from the Veterans Administration.

Justice Thurgood Marshall said that the 1982 law’s “plain and precise language” does not permit a state judge to order that a serviceman’s disability pay be split evenly between the husband and wife.

“We realize that reading the statute literally may inflict economic harm on many former spouses,” Marshall added. “But we decline to misread the statute in order to reach a sympathetic result.” He concluded by inviting Congress to rewrite the law.

The NOW Legal Defense Fund agreed with Marshall that the law needs to be rewritten but assailed the court for a “rigid statutory interpretation (that) strikes a cruel blow” at divorced military spouses.

This case grew out of the 1979 divorce of retired Air Force Maj. Gerald Mansell and his wife, Gaye, who separated after 25 years of marriage and six children. In a divorce decree signed in a Merced court, Mansell initially agreed to pay his wife half of his $1,682 total monthly military retirement pay, or $841 a month.

However, the former bomber pilot opted to receive $482 of his pay as disability income from the Veterans Administration. Under the military retirement system, there is a ceiling on a retiree’s total income, but, to take advantage of tax breaks, an ex-serviceman who is entitled to receive disability pay may opt to receive part of the total in that form.

In 1983, Mansell sought to have the divorce decree rewritten to exclude the $482 in disability pay from his total income. Two California courts rejected his request, citing the state’s community property policy, under which property gained during a marriage is to be split evenly in a divorce.

However, the high court said that California’s law is preempted by the federal law in this instance. As a result, the former Mrs. Mansell will receive only half of her husband’s $1,200 “disposable retired” income, or $600 a month.

Justice Sandra Day O’Connor, who as a young wife followed her husband to West Germany, where he was stationed in the Army, dissented sharply and accused the majority of missing the forest for the trees.