Supreme Court Takes Case on Military Divorce and Disability Pay
Marschner v. Marschner is a pending-at-press-time United States Supreme Court case that addresses a long-standing controversy among military communities. Does federal law prohibit state courts from enforcing divorce settlement agreements that require a military veteran to pay an ex-spouse when VA disability pay and military retirement pay are involved?
The divorce issue at the center of this case has been debated for decades. How and when does a military member pay an ex-spouse for a divorce settlement, and can military disability pay be used to do so?
This case comes before the Supreme Court as it begins its 2026-2027 schedule, which started October 1, 2026.
Supreme Court Takes Case on Military Divorce and Disability Pay
The case’s technical legal issues involve the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408, and the Supreme Court’s 2017 ruling in Howell v. Howell.
Military Times reports that Richard Marschner served in the North Dakota Army National Guard. During divorce proceedings with his former spouse, Roxane Marschner, the parties agreed to divide his military retirement pay. The settlement included an indemnification clause providing that if Roxane did not receive her designated share of the retirement pay directly, Richard would pay the difference.
But the servicemember chose to receive nontaxable Department of Veterans Affairs disability compensation, and federal law requires veterans to waive an equal amount of taxable military retirement pay to receive VA disability benefits.
The waiver reduced the veteran’s disposable retirement pay, leaving Roxane Marschner without her agreed-upon monthly payment.
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Enforcement Motion Filed
Roxane Marschener filed an enforcement motion in North Dakota district court. The district court ruled in her favor, ordering Richard Marschner to pay $51,232 in back pay and to pay monthly going forward.
That ruling was appealed. On March 4, 2026, the North Dakota Supreme Court reversed the lower Court’s decision, saying that under the USFSPA and Howell, federal law does not permit state courts to divide disability compensation or enforce indemnification clauses that effectively restore waived military retirement pay.
The Issue Before the U.S. Supreme Court
Roxane Marschner petitioned the Supreme Court for review, and the Court granted it in October 2026. The question is basically this:
“Does the Uniformed Services Former Spouses’ Protection Act require state courts to refuse enforcement of indemnification provisions in divorce settlement agreements when a veteran’s waiver of retirement pay for disability pay reduces the ex-spouse’s share?”
The case is currently pending oral argument and decision during the Supreme Court’s 2026–2027 term.
Other Relevant Cases
This legal dispute over military retirement pay, disability benefits, and divorce settlements is just one of many from a 45-year struggle between federal regulations and state family law. Multiple court cases have addressed divorce and military compensation.
- McCarty v. McCarty (1981). The Supreme Court held that federal law prevented state courts from dividing military retirement pay as community property during divorce.
- Uniformed Services Former Spouses’ Protection Act (1982). Congress passed 10 U.S.C. § 1408 to override McCarty, giving state courts explicit authority to divide a service member’s “disposable retired pay.” However, the statute specifically excluded any pay a veteran waives to receive Department of Veterans Affairs disability compensation.
- Mansell v. Mansell (1989). The Supreme Court affirmed that states cannot treat waived retirement pay as divisible marital property, shielding disability checks from court-ordered division.
- Howell v. Howell (2017). John Howell chose VA disability pay years after his divorce was finalized, reducing his retirement pay. That also reduced his ex-spouse’s monthly check. The Supreme Court ruled that a state judge cannot order a veteran to “indemnify a former spouse” to make up for a post-divorce waiver.
- The Post-Howell Split. Howell addressed a judge-imposed order. It did not resolve whether veterans may use a private contract rather than a court order. That open question created the legal issue leading to Marschner v. Marschner.
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Resources for Military Spouses Navigating Divorce
Military divorces involve state property laws, federal statutes, and in some cases, Department of Defense regulations. Spouses who need legal advice during a divorce have on-base support options, but most military-provided legal services provide information about military spouse rights and responsibilities and do not offer legal representation in divorce cases.
Installation Legal Assistance Offices (JAG)
Active-duty spouses have access to military legal assistance office help until a divorce is final. While Judge Advocate General (JAG) officers cannot represent clients in state civilian divorce court, they provide free legal counseling on marital settlement agreements, the USFSPA, division rules, and local jurisdiction.
JAG officers cannot advise both parties in a dispute due to conflict-of-interest rules; the spouse must consult a private attorney for representation.
Military OneSource
The Department of Defense funds free, confidential consultations through Military OneSource. Case managers work with military spouses, pairing them with financial counselors and providing referrals to civilian legal specialists familiar with military benefits.\
American Bar Association Military Pro Bono Project
This program connects qualifying junior-enlisted service members and military families with civilian attorneys who handle civil and family law cases without charge, also known as handling a case “pro bono.” Referrals generally originate through an installation legal assistance officer.
State Bar Military Committees
Many state bar associations offer military legal help or lawyer referral panels that match spouses with private family law attorneys specializing in military issues.
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About the author
Editor-in-Chief Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter/editor for Air Force Television News and the Pentagon Channel. His freelance work includes contract work for Motorola, VALoans.com, and Credit Karma. He is co-founder of Dim Art House in Springfield, Illinois, and spends his non-writing time as an abstract painter, independent publisher, and occasional filmmaker.
