Alaska Military Husband Ordered to Pay Wife from Disability Pension
Alaska case summary on military pensions and federal pre-emption in divorce.
William B. Dew v. P. Shawn Harris
The husband and wife in this Alaska case were married in 1993 and separated in 2018. With the help of a mediator, they reached an agreement as to their property division. Among other things, the agreement provided that the wife was awarded $1200 per month from the non-disability portion of the husband’s military retirement benefit.
The agreement went on to say that if the husband took any action to prevent the wife from receiving this amount, that he would pay the wife directly the corresponding amount.
At some point, the husband converted his retirement income to disability pay, and the wife stopped receiving the $1200. She went to court to enforce the agreement. The trial court noted that federal law prevents a court from awarding military disability pay to a non-military spouse, and that this rule prevented it from awarding the wife the $1200 per month, but suggested that the wife could move to set aside the earlier agreement. But upon reconsideration, the trial court held that enforcement of the agreement would be appropriate, and ordered the husband to pay $1200 per month, in addition to the amount in arrears. The husband then appealed to the Alaska Supreme Court.
The high court zeroed in on the provision stating that the husband must make payments if he takes any action to decrease the amount received by the wife. In this case, converting the pension to a disability pension had that effect. The court noted that “take any action” included visiting a doctor to have his disability status evaluated.
The husband argued that the federal preemption applied, because his disability pay, his only source of income, was being paid to the non-military spouse. But the court held that a spouse can be ordered to (or agree, as in this case) to pay money, even thought the source of that money is a disability pension. The court cited a leading expert in the field of military pensions and divorce, Mark Sullivan, who noted that the payment is not due to the disability, but instead “takes account of the contingency that some military retirement pay may be waived.” In this case, the husband waived a pension that was available to the non-military spouse, and the payment was what he agreed to for making such a waiver.
After tacking some procedural issues raised by the husband, the high court agreed with the lower court’s approach and affirmed the judgment.
No. S-17977, 505 P.3d 224 (Alaska Mar. 4, 2022).
See original opinion for exact language. Legal citations omitted.
To learn more, see Property Division in Tennessee Divorce and view our video Is Tennessee a 50 50 divorce state?
To learn more, see Tennessee Divorce Law on Retirement.
