If you (or your spouse) have a military career, your divorce will look different than a typical Washington State divorce – especially when it comes to retired pay and disability benefits. The rules are a mix of federal law, Washington’s community-property rules, and a line of court decisions that have changed over time.
This article is written for service members and spouses in Jefferson and Island County, Washington who want a practical explanation of how these benefits are treated in a divorce.
The Big Picture: Federal Law + Washington Community Property
Washington is a community property state. In general, anything earned during the marriage – including retirement benefits – is presumed to be community property and subject to just and equitable division under RCW 26.09.080.
But military benefits are not governed solely by Washington law. Two big federal pieces sit on top of everything:
- Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408 – This allows states to treat “disposable retired pay” as divisible marital/community property.
- Federal cases like Rose v. Rose (1987), Mansell v. Mansell (1989), and Howell v. Howell (2017) – These limit what state courts are allowed to divide, especially when retired pay is converted into disability pay. The general takeaway from these Supreme Court cases being that disability pay is not divisible as a community asset.
Washington courts have had to harmonize all of this. The result is that regular military retired pay (the “disposable retired pay” portion) can usually be divided a marital/community property, while military disability retirement pay cannot be divided as property, but can usually be considered as income for child support and spousal maintenance, as well as a circumstance in dividing other property.
2020 update: In 2017 the US Supreme Court held that indemnification is not allowed (Howell v. Howell). That is to say, an order that the military spouse indemnify their former spouse for the lost income caused by a post decree increase in the veterans disability rating is not valid. This prompted a number of state court cases challenging past dissolution decrees that ordered indemnification. In Washington, the court has held that res judicata bars the re opening of these past cases (In re Marriage of Weiser (2020)), even though they now conflict with the Supreme Court ruling. In plain terms the court has ‘grandfathered in’ past orders of indemnification that would be appealable under legal error if ordered by the court today.
Military Retired Pay: What the Court Can Divide
a. “Disposable retired pay” is generally divisible
Under the USFSPA, Washington courts can treat disposable military retired pay as community property and divide it in a divorce.
- This is usually the monthly pension a retiree receives.
- The classic way courts divide it is with a formula based on how much of the service overlapped with the marriage (a “time rule” or coverture fraction).
- The non-member spouse often gets a percentage (e.g. 50% of the community portion) through an order DFAS can honor directly, if the marriage meets the 10/10 rule (10 years of marriage overlapping 10 years of creditable service).
For Jefferson County and Island County divorces, this is handled in the final divorce decree plus a separate military pension division order (sometimes called a “military QDRO”).
b. Federal limits – especially when disability is involved
The U.S. Supreme Court in Mansell v. Mansell held that the USFSPA does not allow state courts to treat as divisible property any portion of retired pay that has been waived to receive VA disability benefits.
Later, Howell v. Howell clarified that state courts also cannot get around this rule by ordering “indemnification” or a dollar-for-dollar replacement if the retiree later waives retirement to receive more disability pay. This is extremely relevant as in military divorces the service member may receive an increase in disability pay post dissolution decree, or even well into their retirement if their service-connected condition worsens over time. This will necessitate a dollar for dollar decrease in disposable retired pay which will decrease the amount received by the spouse.
So in practice:
- The pure retired-pay portion = divisible as property.
- The portion waived to receive VA disability = not divisible as property.
- The court can’t force the service member to “make up” the lost share to the ex-spouse by calling it indemnification, even if the service member spouse increases their disability rating down the road.
3. VA Disability & Military Disability Retirement: Not Divisible Property
Washington courts have been very clear:
- The court cannot slice up VA disability pay or treat it as a community asset.
- The court can, however:
- Consider that disability income when deciding a fair division of other assets (RCW 26.09.080).
- Treat it as income when setting spousal maintenance (RCW 26.09.090) and child support (RCW 26.19).
- Consider that disability income when deciding a fair division of other assets (RCW 26.09.080).
a. VA disability & child support in Washington
Washington’s child support statute specifically requires disclosure of veterans’ disability benefits and allows the court to consider them as income.
- RCW 26.19.045: veterans’ disability pensions and regular disability compensation must be disclosed, and the court may consider them as disposable income when calculating child support.
- Certain special payments, such as aid and attendance or special medical compensation, are excluded from gross income for support.
So while your VA disability check cannot be divided as community property, it can increase your support obligations.
b. VA disability & spousal maintenance
Washington appellate courts have held that disability income (including VA disability) may be considered as income when deciding whether to award maintenance, and in what amount.
The court will look at:
- Each spouse’s need and ability to pay;
- Overall financial circumstances, including disability benefits;
- Health, age, work history, and earning capacity.
What the court cannot do is simply say: “Spouse loses $x of retirement because of a disability waiver, therefore the veteran must pay exactly $x of maintenance to replace that property interest.” That type of strictly dollar-for-dollar “reimbursement” runs into federal preemption problems after Mansell and Howell.
But the court can factor disability pay into the broader maintenance and property-division analysis.
4. Mixed Benefits: CRDP, CRSC, and “Disability Retirement”
Military pay can get messy because there are several different programs:
- Regular longevity retired pay – based solely on years of service.
- Disability retirement pay – for service members medically retired.
- Concurrent Retirement and Disability Pay (CRDP) – allows some retirees to receive both military retirement and VA disability without full offset.
- Combat-Related Special Compensation (CRSC) – special tax-free compensation for combat-related disabilities.
Washington courts focus on what federal law classifies as “disposable retired pay” versus non-divisible disability payments.
In general:
- To the extent the payment is retired pay subject to USFSPA, the court can divide it as property.
- To the extent the payment is pure disability compensation (VA disability, or disability retirement not treated as disposable retired pay), the court cannot divide it as property, but can consider it for support/income.
5. Washington Case Law Themes
Without turning this into a law-review article, a few Washington appellate decisions set the tone:
- Perkins v. Perkins, 26 P.3d 989, 107 Wash.App. 313 (Wash. App. 2001) –
Reaffirmed that a Washington court cannot divide VA disability or award a dollar-for-dollar replacement disguised as maintenance, but can consider disability benefits as one factor in property division and maintenance. - More recent Court of Appeals decisions (2020s) continue to acknowledge that disability waivers and post-decree changes can disrupt the non-member spouse’s expected share of retirement, but they are constrained by Mansell and Howell in how far they can go to “fix” that.
The practical takeaway is that Washington judges are sympathetic to the non-military spouse but are bound by federal limits. That makes careful drafting and planning at the time of divorce extremely important.
6. Practical Issues We See in Jefferson and Island County Cases
a. Planning around possible future disability elections
If a service member is approaching retirement and may later apply for or increase VA disability:
- The non-military spouse needs to understand that their share of retired pay can shrink if the member later converts more of it to disability.
- After Howell, courts are very limited in requiring compensation later purely to restore that lost share.
Good drafting cannot override federal law, but you can still factor in the risk of a future disability increase in a number of ways, such as allocating other property (e.g., real estate or investments) to the spouse to offset risk.
b. Discovery and documentation
In a military divorce, we typically request:
- LES and Retiree Account Statements;
- VA rating decisions and award letters;
- Any notice of CRDP/CRSC;
This lets the court (and the parties) see what’s divisible property and what is non-divisible but still relevant income.
c. Child support and maintenance calculations
In Jefferson and Island County, child support and maintenance decisions routinely take into account:
- Base pay, retired pay, BAH/BAS where appropriate;
- Disability income (subject to the statutory exclusions);
- Civilian wages and self-employment income.
The presence of VA disability or military disability retirement does not remove you from the support guidelines; it simply changes what counts as “property” vs “income” and may affect the total financial picture.
7. What This Means for You
If you are a service member, you should know:
- Your military pension earned during the marriage is usually subject to division.
- Your VA disability and military disability retirement pay are not dividable as property, but they can increase your obligations for maintenance and child support.
- Post-divorce decisions to convert more retirement into disability can reduce what your ex receives, and courts are constrained in how they can respond.
If you are the non-military spouse, you should know:
- You may be entitled to a share of the community portion of military retired pay.
- The court cannot give you a share of VA disability directly, but it can consider that income and your loss of retirement when dividing other property and setting maintenance.
- Early planning is critical to avoid surprises if disability elections occur later.
8. Talk With a Jefferson or Island County Military Divorce Attorney
Military divorces are some of the most technically complex cases we handle. The intersection of:
- USFSPA and federal preemption,
- Washington’s community-property rules, and
- Real-world needs of military families, especially those with children
means you should not rely on generic internet advice or “standard” divorce forms.
At Heuberger Law, we work with service members, retirees, and military spouses to:
- Identify what portion of military retired pay is divisible;
- Properly classify VA disability and disability retirement benefits;
- Structure property division, maintenance, and child support in a way that fits your specific circumstances and complies with both federal and Washington law.
If you’re facing a divorce involving military retired pay or disability benefits, or you have questions about an existing decree, you can contact our office to schedule a consultation and discuss your options.
This article is for general informational purposes only and does not constitute legal advice. Every case is different. For advice about your particular situation, please consult an attorney licensed in Washington State.
