Reston, Virginia · Military Divorce
If you are dividing military retirement in a Reston divorce, there is a quiet trap worth understanding: VA disability pay can shrink a former spouse’s share of the retirement, and a 2017 Supreme Court case named Howell v. Howell limits what a court can do about it after the fact. The fix is not litigation later. It is careful language in the agreement now. Let me walk you through how disability pay interacts with retirement, and how to protect against the surprise.
By Corrie Sirkin, Esq. · Founding Partner, NOVA Legal Professionals
This article is one part of our larger military divorce guide. For the full picture, start with our cornerstone, Military Divorce in Virginia. Here, I will focus on VA disability pay and the Howell v. Howell rule.
How a fair split can quietly shrink
Picture this. A divorce divides military retired pay fairly, and the former spouse counts on that share. Years later, the retiree waives part of the retired pay to receive VA disability pay instead, which is often the financially sensible choice because disability pay is tax free. The trouble is that only the retired pay was divisible. When it shrinks, the former spouse’s share can shrink with it, through no fault of their own. This is the surprise that Howell v. Howell is all about. You can read more on our disability pay and Howell rule page.
What the Supreme Court decided
In Howell v. Howell, decided in 2017, the United States Supreme Court held that a state court cannot order a veteran to reimburse, or indemnify, a former spouse for the reduction in retired pay that results from a post-divorce VA disability waiver. In plain terms, the court cannot simply order the retiree to make up the difference after the fact. That ruling closed a door that some courts had used to protect former spouses, and it means the protection has to be built in earlier, by agreement.
VA disability pay itself is off the table
It helps to be clear about what cannot be divided at all. VA disability compensation is not marital property and cannot be divided in a divorce. Only disposable retired pay can be divided. So when a retiree waives retired pay to receive disability pay, they are moving money from the divisible column into a column that is entirely theirs. Understanding that distinction is the first step to protecting against its effect.
The Protection Is in the Agreement, Not the Lawsuit
Because Howell limits what a court can do later, the meaningful protection happens while the agreement is being written. A well-drafted settlement can address the possibility of a future disability waiver directly, for example by setting the former spouse’s share in a way that accounts for the risk, or by using offsetting assets. The exact approach depends on the facts, but the principle is constant: handle it in the drafting, not in a fight years down the road.
Concerned about disability pay shrinking your share?
Tell me about the retirement and any disability rating, and I will help you understand the risk and the options. No pressure, no commitment.
This cuts both ways
This is not only a former spouse’s concern. A service member with a service connected condition has every right to pursue the VA disability rating they have earned, and they should not feel they must choose between their health benefits and a fair divorce. A thoughtful agreement respects both realities: the veteran’s right to their disability compensation and the former spouse’s reasonable expectation in the share they bargained for. We draft with both in mind, because a lopsided deal helps no one.
When the rating develops far from home
Disability ratings often evolve over a career and sometimes change while a service member is stationed elsewhere or deployed overseas. That makes it all the more important to address the possibility in the divorce, rather than assuming today’s numbers will hold. We help families anticipate how a future waiver could affect the retirement division, and write the agreement so a later change does not blindside either side, no matter where the member is serving when it happens.
How we help in Reston
We explain how a disability waiver can affect a retirement share, draft agreements that address the risk before it arises, and respect both the veteran’s benefits and the former spouse’s expectation. Reston military divorces are filed in the Fairfax Circuit Court, and we represent service members and spouses across Reston and the surrounding Fairfax communities. You can read more on our disability pay and Howell rule page.
“Howell means you cannot fix this in court later. You fix it in the agreement now, before the waiver ever happens.”
Corrie Sirkin, Esq. · Founding Partner
Corrie’s Honest Counsel
Understand that VA disability pay cannot be divided and can reduce the retired pay that can, so the risk is real. Do not assume a court can simply order the difference made up later, because Howell says it usually cannot. And address the possibility in the settlement language now, since that is the only place the protection genuinely lives.
Build the disability waiver risk into the agreement from the start, and a future change protects the veteran’s benefits without quietly erasing the former spouse’s share.
Authoritative References
Sources
- Howell v. Howell, 581 U.S. 214 (2017). Held that a state court cannot order a veteran to indemnify a former spouse for the reduction in retired pay caused by a post-divorce VA disability waiver.
- Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408. Allows division of disposable retired pay only; VA disability compensation is excluded.
- 38 U.S.C. governing VA disability compensation. Treats VA disability pay as separate from divisible military retired pay.
- Code of Virginia, § 20-107.3. Virginia’s equitable distribution statute governing the division of the marital share of retirement.
Federal and Virginia authority verified as of June 2026. Every military divorce turns on its own facts; confirm current rules for your situation.
Frequently Asked Questions
Can VA disability pay be divided in a divorce?
No. VA disability compensation is not marital property and cannot be divided. Only disposable military retired pay can be divided, which is why a disability waiver can affect a former spouse’s share.
What did Howell v. Howell decide?
In 2017 the Supreme Court held that a state court cannot order a veteran to reimburse a former spouse for the reduction in retired pay caused by a post-divorce VA disability waiver.
How can I protect my retirement share from a disability waiver?
Through the settlement language, not a later lawsuit. A well-drafted agreement can account for the risk in advance, for example by setting the share carefully or using offsetting assets, depending on the facts.
Does this force a veteran to give up disability pay?
No. A veteran has every right to pursue an earned disability rating. A thoughtful agreement respects both the veteran’s benefits and the former spouse’s expectation, rather than forcing a choice.
When You Are Ready
Let’s protect against the disability surprise in Reston.
Tell me about the retirement and any disability rating, and I will help you build an agreement that protects both sides before a waiver ever happens. The first call is a warm, no pressure conversation.