In direct response to
McCarty v. McCarty, 453 U.
S. 210, which held that federal law as it then existed
completely preempted the application of state community property
law to military retirement pay, Congress enacted the Uniformed
Services Former Spouses' Protection Act (Act), 10 U.S.C. §
1408 (1982 ed. and Supp. V), which authorizes state courts to treat
as community property "disposable retired or retainer pay," §
1408(c)(1), specifically defining such pay to exclude,
inter
alia, any military retirement pay waived in order for the
retiree to receive veterans' disability benefits, §
1408(a)(4)(B). The Act also creates a mechanism whereby the Federal
Government will make direct community property payments of up to
50% of disposable retired or retainer pay to certain former spouses
who present state court orders granting such pay. A
pre-
McCarty property settlement agreement between
appellant and appellee, who were divorced in a county Superior
Court in California, a community property State, provided that
appellant would pay appellee 50 percent of his total military
retirement pay, including that portion of such pay which he had
waived in order to receive military disability benefits. After the
Act's passage, the Superior Court denied appellant's request to
modify the divorce decree by removing the provision requiring him
to share his total retirement pay with appellee. The State Court of
Appeal affirmed, rejecting appellant's contention that the Act
precluded the lower court from treating as community property the
military retirement pay appellant had waived to receive disability
benefits. In so holding, the court relied on a State Supreme Court
decision which reasoned that the Act did not limit a state court's
ability to treat total military retirement pay as community
property and to enforce a former spouse's rights to such pay
through remedies other than direct Federal Government payments.
Held: The Act does not grant state courts the power to
treat as property divisible upon divorce military retirement pay
waived by the retiree in order to receive veterans' disability
benefits. In light of § 1408(a)(4)(B)'s limiting language as
to such waived pay, the Act's plain and precise language
establishes that § 1408(c)(1) grants state courts the
authority to treat only disposable retired pay, not total retired
pay, as community property. Appellee's argument that the Act has no
preemptive
Page 490 U. S. 582
effect of its own, and must be read as a garnishment statute
designed solely to limit when the Federal Government will make
direct payments to a former spouse, and that, accordingly, §
1408(a)(4)(B) defines "disposable retired or retainer pay" only
because payments under the statutory direct payment mechanism are
limited to amounts defined by that term, is flawed for two reasons.
First, the argument completely ignores the fact that §
1408(c)(1) also uses the quoted phrase to limit specifically and
plainly the extent to which state courts may treat military
retirement pay as community property. Second, each of §
1408(c)'s other subsections imposes new substantive limits on state
courts' power to divide military retirement pay, and it is unlikely
that all of the section, except for § 1408(c)(1), was intended
to preempt state law. Thus, the garnishment argument misplaces its
reliance on the fact that the Act's saving clause expressly
contemplates that a retiree will be liable for "other payments" in
excess of those made under the direct payment mechanism, since that
clause is more plausibly interpreted as serving the limited purpose
of defeating any inference that the mechanism displaced state
courts' authority to divide and garnish property not covered by the
mechanism. Appellee's contention that giving effect to the plain
and precise statutory language would thwart the Act's obvious
purposes of rejecting
McCarty and restoring to state
courts their pre-
McCarty authority is not supported by the
legislative history, which, read as a whole, indicates that
Congress intended both to create new benefits for former spouses
and to place on state courts limits designed to protect military
retirees. Pp.
490 U. S.
587-594.
Reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, WHITE, STEVENS, SCALIA, and KENNEDY,
JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which
BLACKMUN, J., joined,
post, p.
490 U. S.
595.
Page 490 U. S. 583
JUSTICE MARSHALL delivered the opinion of the Court.
In this appeal, we decide whether state courts, consistent with
the federal Uniformed Services Former Spouses' Protection Act, 10
U.S.C. § 1408 (1982 ed. and Supp. V) (Former Spouses'
Protection Act or Act), may treat as property divisible upon
divorce military retirement pay waived by the retiree in order to
receive veterans' disability benefits. We hold that they may
not.
I
Members of the Armed Forces who serve for a specified period,
generally at least 20 years, may retire with retired pay. 10 U.S.C.
§ 3911
et seq. (1982 ed. and Supp. V) (Army); §
6321
et seq. (1982 ed. and Supp. V) (Navy and Marine
Corps); § 8911
et seq. (1982 ed. and Supp. V) (Air
Force). The amount of retirement pay a veteran is eligible to
receive is calculated according to the number of years served and
the rank achieved. §§ 3926 and 3991 (Army); §§
6325-6327 (Navy and Marine Corps); § 8929 (Air Force).
Veterans who became disabled as a result of military service are
eligible for disability benefits. 38 U.S.C. § 310 (wartime
disability); § 331 (peacetime disability). The amount of
disability benefits a veteran is eligible to receive is calculated
according to the seriousness of the disability and the degree to
which the veteran's ability to earn a living has been impaired.
§§ 314 and 365.
In order to prevent double dipping, a military retiree may
receive disability benefits only to the extent that he waives a
corresponding amount of his military retirement pay. § 3105.
[
Footnote 1] Because disability
benefits are exempt from federal, state, and local taxation, §
3101(a), military retirees who waive their retirement pay in favor
of disability benefits increase
Page 490 U. S. 584
their after-tax income. Not surprisingly, waivers of retirement
pay are common.
California, like several other States, treats property acquired
during marriage as community property. When a couple divorces, a
state court divides community property equally between the spouses,
while each spouse retains full ownership of any separate property.
See Cal.Civ.Code Ann. § 4800(a) (West 1983 and
Supp.1989). California treats military retirement payments as
community property to the extent they derive from military service
performed during the marriage.
See, e.g., Casas v.
Thompson, 42 Cal. 3d
131, 139,
720 P.2d 921,
925,
cert. denied, 479 U.S. 1012 (1986).
In
McCarty v. McCarty, 453 U.
S. 210 (1981), we held that the federal statutes then
governing military retirement pay prevented state courts from
treating military retirement pay as community property. We
concluded that treating such pay as community property would do
clear damage to important military personnel objectives.
Id. at
453 U. S.
232-235. We reasoned that Congress intended that
military retirement pay reach the veteran, and no one else.
Id. at
453 U. S. 228.
In reaching this conclusion, we relied particularly on Congress'
refusal to pass legislation that would have allowed former spouses
to garnish military retirement pay to satisfy property settlements.
Id. at
453 U. S.
228-232. Finally, noting the distressed plight of many
former spouses of military members, we observed that Congress was
free to change the statutory framework.
Id. at
453 U. S.
235-236.
In direct response to
McCarty, Congress enacted the
Former Spouses' Protection Act, which authorizes state courts to
treat "disposable retired or
Page 490 U. S. 585
retainer pay" as community property. 10 U.S.C. §
1408(c)(1). [
Footnote 2]
"
Disposable retired or retainer pay'" is defined as "the total
monthly retired or retainer pay to which a military member is
entitled," minus certain deductions. § 1408(a)(4) (1982 ed.
and Supp. V). Among the amounts required to be deducted from total
pay are any amounts waived in order to receive disability benefits.
§ 1408(a)(4)(B). [Footnote
3]
The Act also creates a payments mechanism under which the
Federal Government will make direct payments to a former spouse who
presents, to the Secretary of the relevant military service, a
state court order granting her a portion of the military retiree's
disposable retired or retainer pay. This direct payments mechanism
is limited in two ways. § 1408(d). First, only a former spouse
who was married to a military member "for a period of 10 years or
more during which the member performed at least 10 years of service
creditable in determining the member's eligibility for retired or
retainer pay," § 1408(d)(2), is eligible to receive direct
community property payments. Second, the Federal Government will
not make community property payments that exceed 50 percent of
disposable retired or retainer pay. § 1408(e)(1).
B
Appellant Gerald E. Mansell and appellee Gaye M. Mansell were
married for 23 years, and are the parents of six children. Their
marriage ended in 1979 with a divorce decree from the Merced
County, California, Superior Court. At that time, Major Mansell
received both Air Force retirement pay and, pursuant to a waiver of
a portion of that pay, disability benefits. Mrs. Mansell and Major
Mansell entered
Page 490 U. S. 586
into a property settlement which provided, in part, that Major
Mansell would pay Mrs. Mansell 50 percent of his total military
retirement pay, including that portion of retirement pay waived so
that Major Mansell could receive disability benefits. Civ. No.
55594 (May 29, 1979). In 1983, Major Mansell asked the Superior
Court to modify the divorce decree by removing the provision that
required him to share his total retirement pay with Mrs. Mansell.
The Superior Court denied Major Mansell's request without
opinion.
Major Mansell appealed to the California Court of Appeal, Fifth
Appellate District, arguing that both the Former Spouses'
Protection Act and the anti-attachment clause that protects a
veteran's receipt of disability benefits, 38 U.S.C. § 3101(a)
(1982 ed. and Supp. IV), [
Footnote
4] precluded the Superior Court from treating military
retirement pay that had been waived to receive disability benefits
as community property. Relying on the decision of the Supreme Court
of California in
Casas v. Thompson, supra, the Court of
Appeal rejected that portion of Major Mansell's argument based on
the Former Spouses' Protection Act. 5 Civ. No. F002872 (Jan. 30,
1987). [
Footnote 5]
Casas held that, after the passage of the Former Spouses'
Protection Act, federal law no longer preempted
Page 490 U. S. 587
state community property law as it applies to military
retirement pay. The
Casas court reasoned that the Act did
not limit a state court's ability to treat total military
retirement pay as community property and to enforce a former
spouse's rights to such pay through remedies other than direct
payments from the Federal Government. 42 Cal. 3d at 143-151, 720
P.2d at 928-933. The Court of Appeal did not discuss the
anti-attachment clause, 38 U.S.C. § 3101(a). [
Footnote 6] The Supreme Court of California
denied Major Mansell's petition for review.
We noted probable jurisdiction, 487 U.S. 1217 (1988), and now
reverse.
II
Because domestic relations are preeminently matters of state
law, we have consistently recognized that Congress, when it passes
general legislation, rarely intends to displace state authority in
this area.
See, e.g., Rose v. Rose, 481 U.
S. 619,
481 U. S. 628
(1987);
Hisquierdo v. Hisquierdo, 439 U.
S. 572,
439 U. S. 581
(1979). Thus, we have held that we will not find preemption absent
evidence that it is "
positively required by direct enactment.'"
Hisquierdo, supra, at 439 U. S. 581
(quoting Wetmore v. Markoe, 196 U. S.
68, 196 U. S. 77
(1904)). The instant case, however, presents one of those rare
instances where Congress has directly and specifically legislated
in the area of domestic relations.
It is clear from both the language of the Former Spouses'
Protection Act,
see, e.g., § 1408(c)(1), and its
legislative history,
see, e.g., H.R.Conf.Rep. No. 97-749,
p. 165 (1982); S.Rep. No. 97-502, pp. 1-3, 16 (1982), that Congress
sought to change the legal landscape created by the
McCarty decision. [
Footnote 7]
Page 490 U. S. 588
Because preexisting federal law, as construed by this Court,
completely preempted the application of state community property
law to military retirement pay, Congress could overcome the
McCarty decision only by enacting an affirmative grant of
authority giving the States the power to treat military retirement
pay as community property.
Cf. Midlantic Nat. Bank v. New
Jersey Dept. of Environmental Protection, 474 U.
S. 494,
474 U. S. 501
(1986).
The appellant and appellee differ sharply on the scope of
Congress' modification of
McCarty. Mrs. Mansell views the
Former Spouses' Protection Act as a complete congressional
rejection of
McCarty's holding that state law is
preempted; she reads the Act as restoring to state courts all
pre-
McCarty authority. Major Mansell, supported by the
Solicitor General, argues that the Former Spouses' Protection Act
is only a partial rejection of the
McCarty rule that
federal law preempts state law regarding military retirement pay.
[
Footnote 8]
Where, as here, the question is one of statutory construction,
we begin with the language of the statute.
See, e.g., Blum v.
Stenson, 465 U. S. 886,
465 U. S. 896
(1984);
Consumer Product Safety Comm'n v. GTE Sylvania,
Inc., 447 U. S. 102,
447 U. S. 108
(1980). Mrs. Mansell's argument faces a formidable obstacle in the
language of the Former Spouses' Protection Act. Section 1408(c)(1)
of the Act affirmatively grants state courts the power to divide
military retirement pay, yet its language is both precise and
limited. It provides that
"a court may treat disposable retired or retainer pay . . .
either as property solely of the member or as property of the
member and his spouse in accordance with the law of the
jurisdiction of
Page 490 U. S. 589
such court."
§ 1408(c)(1). The Act's definitional section specifically
defines the term "disposable retired or retainer pay" to exclude,
inter alia, military retirement pay waived in order to
receive veterans' disability payments. § 1408(a)(4)(B).
[
Footnote 9] Thus, under the
Act's plain and precise language, state courts have been granted
the authority to treat disposable retired pay as community
property; they have not been granted the authority to treat total
retired pay as community property.
Mrs. Mansell attempts to overcome the limiting language
contained in the definition, § 1408(a)(4)(B), by reading the
Act as a garnishment statute designed solely to set out the
circumstances under which, pursuant to a court order, the Federal
Government will make direct payments to a former spouse. According
to this view, § 1408(a)(4)(B) defines "[d]isposable retired or
retainer pay" only because payments under the federal direct
payments mechanism are limited to amounts defined by that term.
The garnishment argument relies heavily on the Act's saving
clause. That clause provides:
"Nothing in this section shall be construed to relieve a member
of liability for the payment of alimony, child support,
or
other payments required by a court order on the grounds that
payments made out of disposable retired or retainer pay under this
section have been made in the maximum amount permitted under [the
direct payments mechanism]. Any such unsatisfied obligation
Page 490 U. S. 590
of a member may be enforced by any means available under law
other than the means provided under this section in any case in
which the maximum amount permitted under . . . [the direct payments
mechanism] has been paid."
§ 1408(e)(6) (emphasis added). Mrs. Mansell argues that,
because the saving clause expressly contemplates "other payments"
in excess of those made under the direct payments mechanism, the
Act does not "attempt to tell the state courts what they may or may
not do with the underlying property." Brief for Appellee 17. For
the reasons discussed below, we find a different interpretation
more plausible. In our view, the saving clause serves the limited
purpose of defeating any inference that the federal direct payments
mechanism displaced the authority of state courts to divide and
garnish property not covered by the mechanism.
Compare
Hisquierdo, 439 U.S. at
439 U. S. 584
(to prohibit garnishment is to prohibit division of property);
Wissner v. Wissner, 338 U. S. 655
(1950) (same).
First, the most serious flaw in the garnishment argument is that
it completely ignores § 1408(c)(1). Mrs. Mansell provides no
explanation for the fact that the defined term -- "disposable
retired or retainer pay" -- is used in § 1408(c)(1) to limit
specifically and plainly the extent to which state courts may treat
military retirement pay as community property.
Second, the view that the Act is solely a garnishment statute,
and therefore not intended to preempt the authority of state
courts, is contradicted not only by § 1408(c)(1), but also by
the other subsections of § 1408(c). Sections 1408(c)(2),
(c)(3), and (c)(4) impose new substantive limits on state courts'
power to divide military retirement pay. Section 1408(c)(2)
prevents a former spouse from transferring, selling, or otherwise
disposing of her community interest in the military retirement pay.
[
Footnote 10] Section
1408(c)(3) provides that a
Page 490 U. S. 591
state court cannot order a military member to retire so that the
former spouse can immediately begin receiving her portion of
military retirement pay. [
Footnote 11] And § 1408(c)(4) prevents spouses from
forum shopping for a State with favorable divorce laws. [
Footnote 12] Because each of these
provisions preempts state law, the argument that the Act has no
preemptive effect of its own must fail. [
Footnote 13] Significantly, Congress placed
Page 490 U. S. 592
each of these substantive restrictions on state courts in the
same section of the Act as § 1408(c)(1). We think it unlikely
that every subsection of § 1408(c), except § 1408(c)(1),
was intended to preempt state law.
In the face of such plain and precise statutory language, Mrs.
Mansell faces a daunting standard. She cannot prevail without clear
evidence that reading the language literally would thwart the
obvious purposes of the Act.
See, e.g., Trans Alaska Pipeline
Rate Cases, 436 U. S. 631,
436 U. S. 643
(1978). The legislative history does not indicate the reason for
Congress' decision to shelter from community property law that
portion of military retirement pay waived to receive veterans'
disability payments. [
Footnote
14] But the absence of legislative history on this decision is
immaterial in light of the plain and precise language of the
statute; Congress is not required to build a record in the
legislative history to defend its policy choices.
Because of the absence of evidence of specific intent in the
legislative history, Mrs. Mansell resorts to arguments about the
broad purposes of the Act. But this reliance is misplaced because,
at this general level, there are statements that both contradict
and support her arguments. Her argument that the Act contemplates
no federal preemption is supported by statements in the Senate
Report and the House Conference
Page 490 U. S. 593
Report that the purpose of the Act is to overcome the
McCarty decision and to restore power to the States.
[
Footnote 15] But the Senate
Report and the House Conference Report also contain statements
indicating that Congress rejected the uncomplicated option of
removing all federal preemption and returning unlimited authority
to the States. [
Footnote 16]
Indeed, a bill that would have eliminated all federal preemption
died in the Senate Committee. [
Footnote 17] Her argument that Congress primarily
intended to protect former spouses is supported by evidence that
Members of Congress were moved by, and responding to, the
distressed economic plight of military wives after a divorce.
[
Footnote 18] But the Senate
Report and the House debates contain
Page 490 U. S. 594
statements which reveal that Congress was concerned as well with
protecting the interests of military members. [
Footnote 19]
Thus, the legislative history, read as a whole, indicates that
Congress intended both to create new benefits for former spouses
and to place limits on state courts designed to protect military
retirees. Our task is to interpret the statute as best we can, not
to second-guess the wisdom of the congressional policy choice.
See, e.g., Rodriguez v. United States, 480 U.
S. 522,
480 U. S. 526
(1987) (per curiam) ("Deciding what competing values will or will
not be sacrificed to the achievement of a particular objective is
the very essence of legislative choice"). Given Congress' mixed
purposes, the legislative history does not clearly support Mrs.
Mansell's view that giving effect to the plain and precise language
of the statute would thwart the obvious purposes of the Act.
We realize that reading the statute literally may inflict
economic harm on many former spouses. But we decline to misread the
statute in order to reach a sympathetic result when such a reading
requires us to do violence to the plain language of the statute and
to ignore much of the legislative history. Congress chose the
language that requires us to decide as we do, and Congress is free
to change it.
III
For the reasons stated above, we hold that the Former Spouses'
Protection Act does not grant state courts the
Page 490 U. S. 595
power to treat as property divisible upon divorce military
retirement pay that has been waived to receive veterans disability
benefits. The judgment of the California Court of Appeal is hereby
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
For example, if a military retiree is eligible for $1500 a month
in retirement pay and $500 a month in disability benefits, he must
waive $500 of retirement pay before he can receive any disability
benefits.
[
Footnote 2]
The language of the Act covers both community property and
equitable distribution States, as does our decision today. Because
this case concerns a community property State, for the sake of
simplicity, we refer to § 1408(c)(1) as authorizing state
courts to treat "disposable retired or retainer pay" as community
property.
[
Footnote 3]
Also deducted from total military retirement pay are amounts:
(a) owed by the military member to the United States; (b) required
by law to be deducted from total pay, including employment taxes,
and fines and forfeitures ordered by courts-martial; (c) properly
deducted for federal, state, and local income taxes; (d) withheld
pursuant to other provisions under the Internal Revenue Code; (e)
equal to the amount of retired pay of a member retired for physical
disability; and (f) deducted to create an annuity for the former
spouse. 10 U.S.C. §§ 1408(a)(4)(A)-(F) (1982 ed. and
Supp. V).
[
Footnote 4]
That clause provides that veterans' benefits
"shall not be assignable except to the extent specifically
authorized by law, and . . . shall be exempt from the claim[s] of
creditors, and shall not be liable to attachment, levy, or seizure
by or under any legal or equitable process whatever, either before
or after receipt by the [veteran]."
38 U.S.C. § 3101(a) (1982 ed. and Supp. V).
[
Footnote 5]
In a supplemental brief, Mrs. Mansell argues that the doctrine
of
res judicata should have prevented this
pre-
McCarty property settlement from being reopened.
McCarty v. McCarty, 453 U. S. 210
(1981). The California Court of Appeal, however, decided that it
was appropriate, under California law, to reopen the settlement and
reach the federal question. 5 Civ. No. F002872 (Jan. 30, 1987).
Whether the doctrine of
res judicata, as applied in
California, should have barred the reopening of
pre-
McCarty settlements is a matter of state law over
which we have no jurisdiction. The federal question is therefore
properly before us.
[
Footnote 6]
Because we decide that the Former Spouses' Protection Act
precludes States from treating as community property retirement pay
waived to receive veterans' disability benefits, we need not decide
whether the anti-attachment clause, § 3101(a), independently
protects such pay.
See, e.g., Rose v. Rose, 481 U.
S. 619 (1987);
Wissner v. Wissner, 338 U.
S. 655 (1950).
[
Footnote 7]
Congress also demonstrated its focus on
McCarty when it
chose June 25, 1981, the day before
McCarty was decided,
as the applicable date for some of the Act's provisions. 10 U.S.C.
§ 1408(c)(1);
see also note following § 1408,
Pub.L. 97-252, § 1006(b) (transition provisions).
[
Footnote 8]
Although the Solicitor General has filed an
amicus
brief supporting Major Mansell, his initial
amicus brief,
filed before the Court noted jurisdiction, supported Mrs.
Mansell.
[
Footnote 9]
The statute provides, in pertinent part:
"'Disposable retired or retainer pay' means the total monthly
retired or retainer pay to which a member is entitled . . . less
amounts which -- "
"(B) are required by law to be and are deducted from the retired
or retainer pay of such member, including fines and forfeitures
ordered by courts-martials, Federal employment taxes, and amounts
waived in order to receive compensation under title 5 or title 38
[disability payments]."
§ 1408(a)(4)(B).
[
Footnote 10]
The Senate Report expressly contemplates that § 1408(c)(2)
will preempt state law. S.Rep. No. 97-502, p. 16 (1982).
[
Footnote 11]
There was some concern expressed at the Senate hearings on the
Act that state courts could direct a military member to retire.
See, e.g., Hearings before the Subcommittee on Manpower
and Personnel of the Senate Committee on Armed Services, 97th
Cong., 2d Sess., 132-133 (1982) (Sen. Exon);
id. at 70-71
(veterans' group);
id. at 184 (Air Force). Thus, the
Senate version of the bill contained § 1408(c)(3) in order to
ensure that state courts did not have such power, S.Rep. No.
97-502,
supra, at 17, and at conference the House agreed
to add the provision. H.R.Conf.Rep. No. 97-749, p. 167 (1982).
[
Footnote 12]
A state court may not treat disposable retirement pay as
community property unless it has jurisdiction over the military
member by reason of (1) residence, other than by military
assignment in the territorial jurisdiction of the court, (2)
domicile, or (3) consent. § 1408(c)(4). Although the Senate
Committee had decided not to include any forum-shopping
restrictions, seeing "no need to limit the jurisdiction of the
State courts by restricting the benefits afforded by this bill . .
. ," S.Rep. No. 97-502,
supra, at 9, the House version of
the bill contained the restrictions, and at conference, the Senate
agreed to add them. H.R.Conf.Rep. No. 97-749,
supra, at
167.
[
Footnote 13]
That Congress intended the substantive limits in §
1408(c)(1) to be, to some extent, distinct from the limits on the
direct payments mechanism contained in § 1408(d) is
demonstrated by the legislative compromise that resulted in the
direct payments mechanism's being available only to former spouses
who had been married to the military retiree for 10 years or more.
§ 1408(d)(2). Under the House version of the bill, military
retirement pay could be treated as community property only if the
couple had been married for 10 years or more. H.R.Conf.Rep. No.
97-749,
supra, at 165. The Senate Committee had
considered, but rejected, such a provision. S.Rep. No. 97-502,
supra, at 9-11. The conferees agreed to remove the House
restriction. Instead, they limited the federal direct payments
mechanism to marriages that had lasted 10 years or more.
H.R.Conf.Rep. No. 97-749,
supra, at 166-167. Under this
compromise, state courts have been granted the authority to award a
portion of disposable military retired pay to former spouses who
were married to the military member for less than 10 years, but
such former spouses may not take advantage of the direct payments
mechanism.
[
Footnote 14]
The only reference to the definitional section is contained in
the Senate Report, which states that the deductions from total
retired pay, including retirement pay waived in favor of veterans'
disability payments,
"generally parallel those existing deductions which may be made
from the pay of Federal employees and military personnel before
such pay is subject to garnishment for alimony or child support
payments under section 459 of the Social Security Act. (42 U.S.C.
659)."
S.Rep. No. 97-502,
supra, at 14. This statement,
however, describes the defined term in § 1408(a)(4). It is not
helpful in determining why Congress chose to use the defined term
-- "disposable retired or retainer pay" -- to limit state court
authority in § 1408(c)(1).
[
Footnote 15]
See, e.g., S.Rep. No. 97-502,
supra, at 1
("The primary purpose of the bill is to remove the effect of the
United States Supreme Court decision in
McCarty v.
McCarty, 453 U. S. 210
(1981). The bill would accomplish this objective by permitting
Federal, State, and certain other courts, consistent with the
appropriate laws, to once again consider military retired pay when
fixing the property rights between the parties to a divorce,
dissolution, annulment or legal separation").
See also id.
at 5;
id. at 16; H.R.Conf.Rep.No. 97-749,
supra,
at 165.
[
Footnote 16]
H.R.Conf.Rep. No. 97-749, at 165 ("The House amendment would
permit disposable military retired pay to be considered as property
in divorce settlements
under certain specified
conditions") (emphasis added);
ibid. ("The House
Amendment contained several provisions that would place
restrictions on the division of retired pay"); S.Rep. No. 97-502,
supra, at 4 ("[Senate] 1814 imposes
three distinct
limits on the division or enforcement of court orders against
military retired pay in divorce cases") (emphasis added).
[
Footnote 17]
Entitled "Nonpreemption of State law," the bill provided
that,
"[f]or purposes of division of marital property of any member or
former member of the armed forces upon dissolution of such member's
marriage, the law of the State in which the dissolution of marriage
proceeding was instituted shall be dispositive on all matters
pertaining to the division of any retired, retirement, or retainer
pay to which such member or former member is entitled or will
become entitled."
S. 1453, 97th Cong., 1st Sess. (1981).
[
Footnote 18]
The Senate Committee pointed out that
"frequent change-of-station moves and the special pressures
placed on the military spouse as a homemaker make it extremely
difficult to pursue a career affording economic security, job
skills and pension protection."
S.Rep. No. 97-502,
supra, at 6. The language of the
Act, and much of its legislative history, is written in gender
neutral terms, and there is no doubt that the Act applies equally
to both former husbands and former wives. But "it is quite evident
from the legislative history that Congress acted largely in
response to the plight of the military
wife." Horkovich,
Uniformed Services Former Spouses' Protection Act: Congress' Answer
to
McCarty v. McCarty Goes Beyond the Fundamental
Question, 23 Air Force L.Rev. 287, 308 (1982-1983) (emphasis in
original).
[
Footnote 19]
See, e.g., S.Rep. No. 97-502,
supra, at 7
("All agreed that some form of remedial legislation which is fair
and equitable to both spouses was necessary to provide a solution
to the
McCarty decision");
see also id. at 11;
nn. 10, 11, 12, and 16,
supra.
JUSTICE O'CONNOR, with whom JUSTICE BLACKMUN joins,
dissenting.
Today the Court holds that the federal Uniformed Services Former
Spouses' Protection Act (Former Spouses' Protection Act or Act)
denies state courts the power to order in a divorce decree the
division of military retirement pay unilaterally waived by a
retiree in order to receive veterans' disability benefits. The
harsh reality of this holding is that former spouses like Gaye
Mansell can, without their consent, be denied a fair share of their
ex-spouse's military retirement pay simply because he elects to
increase his after-tax income by converting a portion of that pay
into disability benefits. On the Court's reading of the Former
Spouses' Protection Act, Gaye Mansell will lose nearly 30 percent
of the monthly retirement income she would otherwise have received
as community property. I view the Court's holding as inconsistent
with both the language and the purposes of the Act, and I
respectfully dissent.
The Court recognized in
McCarty v. McCarty,
453 U. S. 210,
453 U. S. 235
(1981), that "the plight of an ex-spouse of a retired service
member is often a serious one." In holding that federal law
precluded state courts from dividing nondisability military retired
pay pursuant to state community property laws,
McCarty
concluded with an invitation to Congress to reexamine the issue.
Congress promptly did so, and enacted the Former Spouses'
Protection Act. Today, despite overwhelming evidence that Congress
intended to overrule
McCarty completely, to alter
preexisting federal military retirement law so as to eliminate the
preemptive effect
Page 490 U. S. 596
discovered in
McCarty, and to restore to the States
authority to issue divorce decrees affecting military retirement
pay consistent with state law, the Court assumes that Congress only
partially rejected
McCarty, and that the States can apply
their community property laws to military retirement pay only to
the extent that the Former Spouses' Protection Act affirmatively
grants them authority to do so.
Ante at
490 U. S. 587.
The
McCarty decision, however, did not address retirement
pay waived to receive disability benefits; nor did it identify any
explicit statutory provision precluding the States from
characterizing such waived retirement pay as community property.
Thus, I reject the Court's central premise that the States are
precluded by
McCarty from characterizing as community
property any retirement pay waived to receive disability benefits
absent an affirmative grant of authority in the Former Spouses'
Protection Act.
In my view, Congress intended, by enacting the Former Spouses'
Protection Act, to eliminate the effect of
McCarty's
preemption holding altogether, and to return to the States their
authority "to treat military pensions in the same manner as they
treat other retirement benefits." S.Rep. No. 97-502, p. 10 (1982).
See also id. at 1 ("The primary purpose of the bill is to
remove the effect of the United States Supreme Court decision in
McCarty v. McCarty, 453 U. S. 210
(1981). The bill would accomplish this objective by permitting
Federal, State, and certain other courts, consistent with the
appropriate laws, to once again consider military retired pay when
fixing the property rights between the parties to a divorce,
dissolution, annulment or legal separation");
id. at 5
("[T]he committee intends the legislation to restore the law to
what it was when the courts were permitted to apply State divorce
laws to military retired pay");
id. at 16 ("The provision
is intended to remove the federal preemption found to exist by the
United States Supreme Court and permit State and other courts of
competent jurisdiction to apply pertinent State or other laws in
determining
Page 490 U. S. 597
whether military retired or retainer pay should be
divis[i]ble"); 128 Cong.Rec. 18314 (1982) ("The amendment simply
returns to State courts the authority to treat military retired pay
as it does other public and private pensions") (remarks of Rep.
Schroeder, bill sponsor).
Family law is an area traditionally of state concern,
Hisquierdo v. Hisquierdo, 439 U.
S. 572,
439 U. S. 581
(1979), and we have not found federal preemption of state authority
in this area absent a determination that "Congress has
positively required by direct enactment' that state law be
preempted." Ibid. (quoting Wetmore v. Markoe,
196 U. S. 68,
196 U. S. 77
(1904)). The Former Spouses' Protection Act does not "positively
require" States to abandon their own law concerning the
divisibility upon divorce of military retirement pay waived in
order to obtain veterans' disability benefits. On the contrary, the
whole thrust of the Act was to restore to the States their
traditional authority in the area of domestic relations. Even
beyond that restoration, Congress sought to provide greater federal
assistance and protection to military spouses than existed before
McCarty by creating a federal garnishment remedy in aid of
state court community property awards. That, in fact, is the
central purpose and preoccupation of the Act's complex statutory
framework. The Former Spouses' Protection Act is primarily a
remedial statute creating a mechanism whereby former spouses armed
with state court orders may enlist the Federal Government to assist
them in obtaining some of their property entitlements upon divorce.
The federal garnishment remedy created by the Act is limited, but
it serves as assistance, and not, as the Court would have it, a
hindrance, to former spouses. Thus, the provision at 10 U.S.C.
§ 1408(a)(4)(B) (1982 ed. and Supp. V) of the Act defining
"[d]isposable retired or retainer pay" to exclude "amounts waived
in order to receive compensation under title 5 or title 38," and
its incorporation into § 1408(c)(1)'s community property
provision, only limits the federal garnishment remedy created by
the Act. It does not limit the authority
Page 490 U. S. 598
of States to characterize such waived retirement pay as
community property under state law.
This reading is reinforced by the legislative history, which
indicates that
"[t]he specific deductions that are to be made from the total
monthly retired and retainer pay generally parallel those existing
deductions which may be made from the pay of Federal employees and
military personnel before such pay is subject to
garnishment for alimony or child support payments under
section 459 of the Social Security Act (42 U.S.C. 659)."
S.Rep. No. 97-502,
supra, at 14 (emphasis added). The
Court finds that this statement
"is not helpful in determining why Congress chose to use the
defined term -- 'disposable retired or retainer pay' -- to limit
state court authority in § 1408(c)(1)."
Ante at
490 U. S. 592,
n 14. True, it is singularly
unhelpful in supporting the Court's view that § 1408(c)(1)
denies state courts authority to characterize retirement pay waived
in lieu of disability benefits as community property. By contrast,
it
is helpful in determining why Congress chose to use
"disposable retired or retainer pay" as the term limiting state
court authority to
garnish military retirement pay. In
light of the fact that disability benefits are exempt from
garnishment in most cases, 38 U.S.C. § 3101(a) (1982 ed.,
Supp. V), had Congress not excluded "amounts waived" in order to
receive veterans' disability benefits from the federal garnishment
remedy created by the Former Spouses' Protection Act, it would have
eviscerated the force of the anti-attachment provisions of §
3101(a).
To take advantage of the federal garnishment remedy, which
provides for direct payment by the Government to former spouses in
specified circumstances, former spouses must serve on the
appropriate service Secretary court orders meeting certain
requirements. In the case of a division of property, the court
order must
"specifically provid[e] for the payment of an amount, expressed
in dollars or as a percentage of disposable retired or retainer
pay, from the disposable retired or retainer pay of a member."
10 U.S.C. § 1408(a)(2)(C)
Page 490 U. S. 599
(1982 ed., Supp. V). It must contain certain information and be
regular on its face. §§ 1408(b)(1)(B), 1408(b) (1)(C),
1408(b)(1)(D), 1408(b)(2) (1982 ed. and Supp. V). The Act sets
forth the procedures to be followed by the Secretary in making
payments directly to former spouses. § 1408(d) (1982 ed. and
Supp. V). Finally, the Act places limits on the total amount of
disposable retirement pay that may be paid by the Secretary to
former spouses, §§ 1408(e)(1), 1408(e)(4) (B) (1982 ed.
and Supp. V), and it clarifies the procedures to be followed in the
event of multiple or conflicting court orders. §§
1408(e)(2), 1408(e)(3)(A) (1982 ed., Supp. V).
Subsection 1408(c)(1) authorizes the application of this federal
garnishment remedy to community property awards by providing
that
"a court
may treat disposable retired or retainer pay
payable to a member . . . either as property solely of the member
or as property of the member and his spouse in accordance with the
law of the jurisdiction of such court."
(Emphasis added.) This provision should not be read to
preclude States from characterizing retirement pay waived
to receive disability benefits as community property, but only to
preclude the use of the federal direct payments mechanism to attach
that waived pay. Nor do §§ 1408 (c)(2), (c)(3), and
(c)(4) compel the conclusion that Congress intended to preempt
States from characterizing gross military retirement pay as
community property divisible upon divorce. Those three provisions
indicate what States may "not" do. That Congress explicitly
restricted the authority of courts in certain specific respects,
however, does not support the inference that § 1408(c)(1) --
an affirmative
grant of power -- should be interpreted as
precluding everything it does not grant. On the contrary, it
supports the inference that Congress explicitly and directly
precluded those matters it wished to preempt entirely, leaving the
balance of responsibility in the area of domestic relations to the
States. In this respect, the Court mischaracterizes Gaye Mansell's
argument as insisting that "the Act contemplates no federal
preemption. . . ."
Page 490 U. S. 600
Ante at
490 U. S. 592.
Subsection 1408(c) has substantive effects on the power of state
courts -- its first paragraph expands those powers ("a court may
treat"); its remaining paragraphs restrict those powers ("this
section does not create"; "[t]his section does not authorize"; "[a]
court may not treat").
That States remain free to characterize waived portions of
retirement pay as community property is unambiguously underscored
by the broad language of the saving clause contained in the Act,
§ 1408(e)(6). That clause provides:
"
Nothing in this section shall be construed to relieve
a member of liability for the payment of alimony, child support,
or other payments required by a court order on the grounds
that payments made out of disposable retired or retainer pay under
this section have been made in the maximum amount permitted under
paragraph (1) or subparagraph (B) of paragraph (4).
Any such
unsatisfied obligation of a member may be enforced by any means
available under law other than the means provided under this
section in any case in which the maximum amount permitted
under paragraph (1) has been paid and under section 459 of the
Social Security Act (42 U.S.C. 659) in any case in which the
maximum amount permitted under subparagraph (B) of paragraph (4)
has been paid."
(Emphasis added.) The Court explains that the saving clause
"serves the limited purpose of defeating any inference that the
federal direct payments mechanism displaced the authority of state
courts to divide and garnish property
not covered by the
mechanism."
Ante at
490 U. S. 590
(emphasis added). I agree. What I do not understand is how the
Court can read the Act's saving clause in this manner and yet
conclude, without contradiction, that California may not
characterize retirement pay waived for disability benefits as
community property. All California seeks to do is "divide and
garnish property not covered by the [federal direct payments]
mechanism."
Ibid. Specifically, California wishes to
exercise its traditional family
Page 490 U. S. 601
law powers to divide as community property that portion of Major
Mansell's retirement pay which he unilaterally converted into
disability benefits, and use state law garnishment remedies to
attach the
value of Gaye Mansell's portion of this
community property. That is precisely what § 1408(e)(6) saves
to the States by "defeating" any contrary inference,
ante
at
490 U. S. 590,
that the Act has displaced the State's authority to enforce its
divorce decrees "by any means available under law other than the
means provided under this section. . . ." § 1408(e)(6). As the
California Supreme Court so aptly put it, in the saving clause,
Congress emphasized that
"the limitations on the service secretary's ability to reach the
retiree's gross pay [are] not to be deemed a limitation on the
state court's ability to define the community property interests at
the time of dissolution."
Casas v. Thompson, 42 Cal. 3d
131, 150,
720 P.2d 921,
933,
cert. denied, 479 U.S. 1012 (1986). In other words,
while a former spouse may not receive community property payments
that exceed 50 percent of a retiree's disposable retirement pay
through the direct federal garnishment mechanism, §
1408(e)(1), a state court is free to characterize gross retirement
pay as community property depending on the law of its jurisdiction,
and former spouses may pursue any other remedy "available under
law" to satisfy that interest. "Nothing" in the Former Spouses'
Protection Act relieves military retirees of liability under such
law if they possess other assets equal to the value of the former
spouse's share of the gross retirement pay.
Under the Court's reading of the Act as precluding the States
from characterizing gross retirement pay as community property, a
military retiree has the power unilaterally to convert community
property into separate property and increase his after-tax income
at the expense of his ex-spouse's financial security and property.
entitlements. To read the statute as permitting a military retiree
to pocket 30 percent, 50 percent, even 80 percent of gross
retirement pay by converting it into disability benefits, and
thereby to avoid his obligations
Page 490 U. S. 602
under state community property law, however, is to distort
beyond recognition and to thwart the main purpose of the statute,
which is to recognize the sacrifices made by military spouses and
to protect their economic security in the face of a divorce. Women
generally suffer a decline in their standard of living following a
divorce.
See Weitzman, The Economics of Divorce: Social
and Economic Consequences of Property, Alimony and Child Support
Awards, 28 UCLA L.Rev. 1181, 1251 (1981). Military wives face
special difficulties because
"frequent change-of-station moves and the special pressures
placed on the military spouse as a homemaker make it extremely
difficult to pursue a career affording economic security, job
skills and pension protection."
S.Rep. No. 97-502, at 6. The average military couple married for
20 years moves about 12 times, and military wives experience an
unemployment rate more than double that of their civilian
counterparts. Brief for Women's Equity Action League
et
al. as
Amicus Curiae 10-11. Retirement pay, moreover,
is often the single most valuable asset acquired by military
couples.
Id. at 18. Indeed, the one clear theme that
emerges from the legislative history of the Act is that Congress
recognized the dire plight of many military wives after divorce,
and sought to protect their access to their ex-husbands' military
retirement pay.
See S.Rep. No. 97-502, at 6; 128 Cong.Rec.
18318 (1982) ("[F]requent military moves often preclude spouses
from pursuing their own careers and establishing economic
independence. As a result, military spouses are frequently unable
to vest in their own retirement plans or obtain health insurance
coverage from a private employer. Military spouses who become
divorced often lose all access to retirement and health benefits --
despite a
career' devoted to the military") (remarks of Rep.
Schumer). See also id. at 18315, 18316, 18317, 18320,
18323, 18328. Reading the Act as not precluding States from
characterizing retirement pay waived to receive disability benefits
as property divisible upon divorce is faithful to
Page 490 U. S. 603
the clear remedial purposes of the statute in a way that the
Court's interpretation is not.
The conclusion that States may treat gross military retirement
pay as property divisible upon divorce is not inconsistent with 38
U.S.C. § 3101(a) (1982 ed., Supp. V). This anti-attachment
provision provides that veterans' disability benefits
"shall not be liable to attachment, levy, or seizure by or under
any legal or equitable process whatever, either before or after
receipt by the beneficiary."
Gaye Mansell acknowledges, as she must, that § 3101(a)
precludes her from garnishing under state law Major Mansell's
veterans' disability benefits in satisfaction of her claim to a
share of his gross military retirement pay, just as §
1408(c)(1) precludes her from invoking the federal direct payments
mechanism in satisfaction of that claim. To recognize that §
3101(a) protects the funds from a specific source, however, does
not mean that § 3101(a) prevents Gaye Mansell from recovering
her 50 percent interest in Major Mansell's gross retirement pay out
of any income or assets he may have
other than his
veterans' disability benefits. So long as those benefits themselves
are protected, calculation of Gaye Mansell's entitlement on the
basis of Major Mansell's gross retirement pay does not constitute
an "attachment" of his veterans' disability benefits. Section
3101(a) is designed to ensure that the needs of disabled veterans
and their families are met,
see Rose v. Rose, 481 U.
S. 619,
481 U. S. 634
(1987), without interference from creditors. That purpose is
fulfilled so long as the benefits themselves are protected by the
anti-attachment provision.
In sum, under the Court's interpretation of the Former Spouses'
Protection Act, the former spouses Congress sought to protect risk
having their economic security severely undermined by a unilateral
decision of their ex-spouses to waive retirement pay in lieu of
disability benefits. It is inconceivable that Congress intended the
broad remedial purposes of the statute to be thwarted in such a
way. To be sure, as the Court notes, Congress sought to be "fair
and equitable" to retired
Page 490 U. S. 604
service members as well as to protect divorced spouses.
Ante at
490 U. S.
593-594, and n.19. Congress explicitly protected
military members by limiting the percentage of disposable
retirement pay subject to the federal garnishment remedy and by
expressly providing that military members could not be forced to
retire.
See 10 U.S.C. §§ 1408(e)(1),
1408(e)(4)(B), 1408(c)(3). Moreover, a retiree is still advantaged
by waiving retirement pay in lieu of disability benefits: the pay
that is waived is not subject to the federal direct payments
mechanism, and the former spouse must resort instead to the more
cumbersome and costly process of seeking a state garnishment order
against the value of that waived pay.
See H.R.Rep. No.
98-700, pp. 4-5 (1984) (discussing difficulties faced by ex-spouses
in obtaining state garnishment orders). Even these state processes
cannot directly attach the military retiree's disability benefits
for purposes of satisfying a community property division, given the
strictures of the anti-attachment provision of 38 U.S.C. §
3101(a). There is no basis for concluding, however, that Congress
sought to protect the interests of service members by allowing them
unilaterally to deny their former spouses
any opportunity
to obtain a fair share of the couple's military retirement pay.
It is now once again up to Congress to address the inequity
created by the Court in situations such as this one. But because I
believe that Congress has already expressed its intention that the
States have the authority to characterize waived retirement pay as
property divisible upon divorce, I dissent.