Howell v. Howell

DOES THE PRESUMPTION AGAINST PREEMPTION APPLY IN THIS CASE?

Mr. Howell argues that the Court need not consider whether the presumption against preemption applies in this case. To support this argument, Mr. Howell notes that in Hillman v. Maretta, 133 S. Ct. 1943 (2013), the Court stated that family law is not insulated from preemption and that “state laws governing the economic aspects of domestic relations must give way to clearly conflicting federal enactments.” According to Mr. Howell, because the Arizona divorce court’s order stands in clear conflict with the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), the USFSPA must preempt the order. However, Mr. Howell also asserts that if the Court does consider the presumption against preemption, it should hold that it does not apply in this case for four reasons. First, Mr. Howell argues that the presumption does not apply here because the Court held in Mansell v. Mansell, 490 U.S. 581 (1989), that federal law completely preempts all state law unless a federal statute affirmatively confers power on state divorce courts, and the USFSPA does not provide this power. Second, Mr. Howell claims that the presumption does not apply in areas of strong federal interest and he asserts that there is a strong federal interest in regulating military benefits and veterans’ rights. Third, Mr. Howell contends that the presumption does not apply in areas where there is a history of significant federal presence, and he notes a number of federal statutes regulating military benefits to support his claim that there is significant federal presence in this area. Fourth, Mr. Howell argues that the presumption does not apply in this case because it is based on the incorrect assumption that Congress does not intend to regulate family law.

In contrast, Ms. Howell argues that the presumption against preemption does apply in this case because the USFSPA does not expressly preempt state law and because Mansell did not hold that all federal law preempts all state law unless a federal statute confers power on state divorce courts. Instead, Ms. Howell contends that Mansell stands for the narrower rule that the USFSPA does not grant states the power to treat the military retirement pay (“MRP”) that a veteran waives to receive disability benefits as property divisible upon divorce. Thus, Mansell leaves room for the Court to apply other aspects of domestic relations law, including the rule that regulation of such relations is primarily left to the states, Ms. Howell asserts. Given this rule, Ms. Howell argues that there is a strong presumption against federal preemption of state law governing domestic relations. Ms. Howell also asserts that the Court’s deference to Congress in matters regarding the military and the history of significant federal presence in military disability and retirement benefits does not negate the presumption against preemption of state domestic relations laws.

DOES THE USFSPA PREEMPT THE DIVORCE COURT’S ORDER?

Mr. Howell argues that the USFSPA preempts the Arizona divorce court’s order under either of two legal standards for preemption—first, whether the state law directly contradicts the federal statute, or second, whether the state law is an obstacle to the accomplishment and execution of Congress’s purposes and objectives. Mr. Howell first asserts that when the USFSPA authorizes a divorce court to treat disposable MRP as community property divisible upon divorce, it excludes amounts of MRP that a veteran waived to receive disability pay. Mr. Howell then contends that the divorce court’s order directly contradicts the USFSPA when it orders him to “ensur[e] [Ms. Howell] receive[s] her full 50% of the military retirement without regard for the disability waiver.” Further, Mr. Howell claims that the divorce court’s requirement that he reimburse Ms. Howell for the MRP waiver is the same thing as dividing waived MRP. Mr. Howell also maintains that Ms. Howell’s analysis regarding her vested interest in the MRP does not overcome federal preemption because the Court held in Mansell that federal law prohibits the creation of such a vested interest.

Alternatively, Mr. Howell argues that the divorce court’s order conflicts with the purposes and objectives of the USFSPA. Mr. Howell states that “it is beyond dispute” that Congress’s purpose and objective was to prevent state courts from dividing waived MRP. Mr. Howell contends that even if there is a technical distinction between an order dividing waived MRP and an order to reimburse an ex-spouse for waived MRP, these two orders accomplish the same thing, and thus they both defeat the USFSPA’s purpose and objectives. Mr. Howell also points to what he claims is a second, related purpose for the USFSPA—to ensure that after a divorce, disabled veterans keep all of their disability pay. Mr. Howell then argues that the Arizona divorce court’s reimbursement order defeats this purpose because it is the economic equivalent of dividing Mr. Howell’s disability pay.

However, Ms. Howell argues that the USFSPA does not preempt the Arizona divorce court’s order because the order does not directly contradict the USFSPA. Ms. Howell contends that the standard for determining whether there is a direct contradiction is more stringent than Mr. Howell asserts. Ms. Howell looks to precedent to claim that a mere conflict in words between federal and state law is not sufficient, and instead, “[s]tate family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests” before there is preemption. Ms. Howell then argues that there is no conflict in this case because the USFSPA authorizes agreements between spouses to divide MRP and it authorizes state courts to enforce and modify these agreements. Further, Ms. Howell contends that earlier cases regarding USFSPA did not affect contracts between spouses and the application of state law to them or the creation of a spouse’s vested interest in MRP under state law. Ms. Howell then argues that because the USFSPA lacks a positive provision compelling the extension of the statute’s protection of waived MRP to MRP that has vested in the veteran’s spouse before any waiver, a court cannot extend this protection to the latter form of MRP. Thus, there is no conflict between the USFSPA and the divorce court’s order requiring Mr. Howell to reimburse Ms. Howell for her vested interest in the pre-waiver MRP, Ms. Howell contends.

Ms. Howell also argues that the divorce court’s order does not conflict with the purposes and objectives of the USFSPA. Ms. Howell looks to legislative history and other provisions of the statute to contend that the primary purpose of the USFSPA is to benefit the veteran’s spouse. Further, Ms. Howell claims that the protection of a veteran’s disability benefits was not an expressly stated objective of the USFSPA. Thus, Mr. Howell is wrong when he states that the statute’s purpose is to ensure that veterans keep all of their disability pay, Ms. Howell asserts. Given the purposes that Ms. Howell advances, she argues that requiring a veteran to honor an agreement to divide MRP with an ex-spouse does not conflict with the USFSPA. Further, Ms. Howell claims that the divorce court’s order does not do major damage to the clear and substantial federal interest in providing for retired military members. According to Ms. Howell, even if a purpose of the USFSPA was to ensure that veterans keep all of their disability pay, the divorce court’s order does not conflict with this purpose because it does not require reimbursement from any particular source of funds, such as disability benefits.

DOES THE USFSPA DISTINGUISH BETWEEN PRE-DIVORCE AND POST-DIVORCE MRP WAIVERS?

Mr. Howell argues that the USFSPA does not distinguish between MRP waivers that occur before a divorce and those that occur after. Mr. Howell supports this argument by noting that nothing in the statute’s text suggests that these waivers are different. In addition, Mr. Howell contends that there is no practical distinction between a prohibited division of waived MRP in an original order and division of waived MRP in a modified order.Mr. Howell also claims that distinguishing between a veteran who waives MRP before a divorce and one who waives MRP after a divorce does not further the USFSPA’s purpose of ensuring that veterans keep all of their disability pay.

Ms. Howell counters that the USFSPA does distinguish between pre-divorce and post-divorce waivers. Ms. Howell notes that the statute allows courts to divide two distinct categories of MRP—total MRP and total MRP less the amount waived to receive disability benefits. Ms. Howell contends that the use of the past tense in the second category means that the statute only applies to waived MRP when the waiver occurred before the divorce. Ms. Howell then claims that the timing of the waiver is relevant because under Arizona law, when MRP is divided before a waiver, a veteran’s spouse has a vested right to receive his or her share of MRP.