Gerald and Gaye Mansell were married for 23 years and divorced in California in 1979. At the time of divorce, Gerald Mansell received Air Force retirement pay and, after waiving part of that pay, veterans' disability benefits. Their property settlement required him to pay Gaye Mansell 50 percent of his total military retirement pay, including the portion waived to receive disability benefits. In 1983, he sought to modify the decree, arguing that federal law barred state courts from treating the waived portion as community property.
Issue
Does the Uniformed Services Former Spouses' Protection Act permit state courts to treat as divisible marital property military retirement pay that the retiree waived in order to receive veterans' disability benefits?
Rule
Under 10 U.S.C. § 1408, state courts may treat as divisible property only 'disposable retired or retainer pay.' Because the Act defines that term to exclude amounts waived in order to receive veterans' disability benefits, the Act does not authorize state courts to divide waived retirement pay as community property upon divorce.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In a divorce in Phoenix, Arizona, a state court awards Lena Ortiz 40% of Devin Ortiz's military retired pay earned during marriage. Devin had elected to waive $900 of his monthly retired pay in order to receive veterans' disability benefits, and the decree expressly includes that waived amount in the marital-property division.
If Devin challenges the decree under the federal statute governing division of military retired pay, how should a reviewing court rule?
Explanation. The majority held that state courts may treat only 'disposable retired or retainer pay' as divisible property. The statute's definition excludes amounts waived in order to receive veterans' disability benefits. Therefore, a state court may divide the disposable portion, but not the waived portion included in total retired pay.