Roxane M. Marschner v. Richard A. Marschner

In the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), Congress provided that a State may treat veterans’ longevity-based retirement pay as divisible property in divorce. 10 U.S.C. § 1408(c). But Congress further provided that retirement pay that was waived to receive disability pay, as well as certain retirement pay received due to disability-related retirements, would be indivisible. 10 U.S.C. § 1408(a)(4)(A)(ii), (iii). In Howell v. Howell, 581 U.S. 214 (2017), a divorced veteran waived a portion of his longevity-based retirement pay in order to receive disability pay, causing his ex-wife’s share of his retirement pay to decrease. The divorce court ordered him to indemnify his ex-wife for that reduction. This Court held that the USFSPA preempted that indemnification order. See id. at 222. In this case, unlike in Howell, the parties agreed as part of their divorce settlement that the veteran would indemnify his ex-wife if her share of his retirement pay were reduced because he later waived his retirement pay to receive disability benefits or because he received disability-based retirement pay. Even though the veteran agreed to the indemnification provision at the time of the divorce, the North Dakota Supreme Court nonetheless held that, under Howell, enforcement of the indemnification provision was preempted. The question presented is: Does the USFSPA require state courts to refuse enforcement of indemnification provisions in divorce settlement agreements?