Military Divorce · Virginia

Can VA Disability Reduce Your Share of Military Retirement?

By Corrie Sirkin, Esq. · Founding Partner

Here is a problem that can surface long after a divorce is final. A veteran chooses to receive VA disability pay, which means waiving an equal amount of retired pay, and suddenly the former spouse's monthly share drops. The spouse feels cheated. A 2017 Supreme Court decision, Howell v. Howell, shapes what a court can and cannot do about it, and the answer makes the original agreement's wording matter enormously.

Why disability pay shrinks the divisible pot

Military retired pay can be divided in divorce. VA disability pay cannot. To receive disability pay, a veteran often has to waive an equal amount of retired pay, dollar for dollar. When that happens, the pool of divisible retired pay shrinks, and the former spouse's share, calculated as a slice of that pool, shrinks with it.

This can happen years after the divorce, when a disability rating comes through or increases. The former spouse did nothing wrong, yet the check gets smaller. It feels unfair, and historically some courts tried to fix it by ordering the veteran to pay the difference from other funds.

What Howell decided

In 2017, the Supreme Court in Howell v. Howell held that a state court cannot order a veteran to indemnify, meaning reimburse, a former spouse for the reduction caused by waiving retired pay for disability pay. Federal law puts disability pay off limits for division, and a workaround that effectively divides it anyway is not allowed.

That ruling closed a door courts had used to protect former spouses. It did not, however, forbid the parties from addressing the risk up front, in the language of their own agreement. The decision constrains what a judge can impose later. It does not constrain what spouses can negotiate now.

Why the agreement language is everything

Because Howell limits the after the fact fix, the protection has to be built into the property settlement from the start. Careful drafting can account for the possibility of a future waiver, allocate the risk between the parties, and offset it with other assets, so a later disability election does not silently rewrite the deal. We draft for that contingency rather than hoping it never comes up. For the broader retirement picture, see our military divorce page, and for the Virginia divorce process, our divorce practice page.

"Howell limits what a judge can fix later. It does not limit what you can negotiate now."

Corrie Sirkin, Esq. Founding Partner

Honest counsel: solve for disability pay before the ink dries

The Howell decision is one of those rulings that quietly punishes people who did not plan for it. Once the divorce is final, a court usually cannot order a veteran to make up the share lost to a disability waiver. That means the only reliable protection is in the agreement itself, written before anyone signs. So when a case involves a servicemember who may receive a disability rating someday, we name that risk out loud and build the settlement to absorb it. The fix is in the drafting. There is rarely a do over later.

Common questions