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Some Military Retirement Pay Shielded from Alimony Payments

May 31, 1989

WASHINGTON (AP) _ Divorced spouses of military veterans suffered a Supreme Court defeat Tuesday when the justices shielded some retirement pay from alimony payments.

By a 7-2 vote in a California case, the court said a 1982 federal law exempts from alimony any military retirement pay that a veteran converts into disability benefits.

The court also said the law requires that the alimony a military veteran is ordered to provide must be calculated on after-taxes income, not gross pay.

Justice Thurgood Marshall, writing for the court, said Congress is free to change the law.

But until that happens, a lawyer in the case said that more than a million divorce settlements could be reopened.

In other action, the court:

-Refused to lift strict advertising limits imposed on a Texas counseling center that authorities called a ″fake abortion clinic″ run by anti-abortion activists. The center was found to have enticed women there with misleading ads so counselors could urge them to continue their pregnancy.

-Let stand a ruling that bans organized prayers at the start of high school football games in Georgia, Alabama and Florida. A lower court ruled that such pregame invocations impermissibly promote religion.

-Agreed to consider reviving a federal lawsuit stemming from the collapse of the Old Court Savings & Loan Association in Maryland.

-Ruled 7-2 that Florida’s death penalty law does not have to require juries, instead of judges, to make the specific findings authorizing imposition of capital punishment.

-Ruled 8-0 against mining companies seeking to revive a 5 percent cap on the royalties they pay to help finance Arizona public schools.

In the divorce case, organizations representing more than 1.2 million military personnel had urged the justices to shield the disability pay from divorce decrees.

The court said Tuesday’s ruling ″may inflict economic harm on many former spouses.″ But Marshall said, ″We decline to misread the statute ... to reach a sympathetic result when such a reading requires us to do violence to the plain language ... and ignore much of the legislative history.″

He added that the 1982 law is aimed at dividing only a veteran’s ″disposable″ retirement pay - the net amount of money received each month.

Excluded from that figure, Marshall said, is money the veteran chooses to convert into tax-exempt disability benefits as well as any taxes paid on the military pension.

Justice Sandra Day O’Connor, in a dissenting opinion, said, ″The harsh reality of this holding is that former spouses ... can, without their consent, be denied a fair share of their ex-spouse’s military pension simply because he elects to (convert) a portion of that pension into disability benefits.″

Justice Harry A. Blackmun joined O’Connor in dissent.

The case stems from the 1979 divorce of Gerald and Gaye Mansell after 25 years of marriage.

Mansell, a retired Air Force major, receives $1,200 a month in retirement pay and $482 in disability benefits.

The amount of disability pay veterans may receive is based on the seriousness of the disability and the resulting impairment on their ability to work. Veterans commonly choose to convert part of their pensions into disability pay because the latter is tax-exempt.

The Mansells’ divorce settlement, filed in Merced County, Calif., awarded Mrs. Mansell half the retirement pay in an uncontested split of that money. The decree also gave her half the disability benefits.

But Mansell went to court in 1983 to modify the divorce decree and exclude the disability pay. The California courts rejected his request.

California is a community property state, meaning property acquired during marriage is considered jointly owned.

Tuesday’s ruling also applies to states that split up property for divorced couples based on a theory of ″equitable distribution.″

The decision focused on the law Congress passed to reverse a 1981 Supreme Court decision that barred state courts from dividing military pensions in divorces.

The 1982 law, called the Uniformed Services Former Spouses Protection Act, allows retirement pay to be subjected to alimony awards.

The Justice Department, which sided initially with Mrs. Mansell, changed its mind late last year and concluded that her former husband’s interpretation of the 1982 law was correct.

Dennis Cornell, Mrs. Mansell’s lawyer, said the decision could allow more than a million ex-members of the armed services to reopen their divorce cases and try to reduce the alimony they pay.

He said many divorce settlements have been based on a veteran’s gross retirement pay.

″I’m hopeful Congress will act″ to undo the decision, Cornell said.

The National Organization for Women Legal Defense and Education Fund called the ruling a ″cruel blow″ for those who seek alimony payments from military retirees ″who seek to avoid obligations to their former families.″

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