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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