Military Disability Benefits Can’t Be Considered in Spousal Maintenance Analysis

by Annette Burns on October 30, 2017

Arizona law establishes that “federal disability benefits awarded to the other spouse for service-connected disabilities . .  . ” cannot be considered by the court in a dissolution proceeding and request for spousal maintenance.”   ARS 25-530.  The specific federal disability benefits falling under this prohibition are 10 USC 1413a (CRSC, combat-related special compensation) and 38 USC, Chapter 11 (compensation for service-connected disability).

In any case involving military retired pay (MRP), the attorney representing the non-military spouse should keep in mind that MRP can be converted to disability pay or CRSC after the divorce decree is final, thus reducing the non-member’s retired pay.   The portion of MRP which later becomes disability pay or CRSC will NOT be divided with the non-member spouse, no matter what the original decree states.  This was made clear in the Howell and Merrill decisions in 2017.      (See this previous post.)

While the non-military spouse may qualify for maintenance under other grounds not related to the MRP, the chance that the spouse’s portion of MRP will be reduced in the future is NOT a basis to request spousal.   The non-military spouse’s attorney should always carefully review all factors to determine if there’s some other basis for a spousal maintenance award, even a small one, to possibly keep maintenance under the court’s jurisdiction in case of future changes.

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