Kansas Court of Appeals
IN RE MARRIAGE OF BABIN
DICKINSON DISTRICT COURT—REVERSED AND REMANDED
NO. 119,099—FEBRUARY 1, 2019
FACTS: Nickey and Roslyn married in 1994. For almost their entire marriage Nickey was an active-duty service member. After both spouses filed for divorce, they agreed to mediate. That mediation resulted in a property settlement agreement which, in part, gave Roslyn 43% of Nickey's military retirement and disability pay. The district court issued a divorce decree but postponed a final property settlement agreement after disagreements arose. Specifically, Nickey claimed that the district court lacked the authority to divide his military disability pay. The district court disagreed and ruled that Nickey was bound by the mediation agreement. He appealed.
ISSUE: (1) Divisibility of military disability benefits
HELD: There are federal laws which pre-empt state courts from treating military disability pay as community property subject to division. These laws are strictly construed, most recently by the United States Supreme Court in Howell v. Howell, 581 U.S. __ (2017). For this reason, the district court could not force Nickey to contract away his disability pay and the property settlement agreement must be vacated. On remand, the district court may consider the financial impact of the disability pay when dividing assets and ordering spousal support.
STATUTE: 10 U.S.C. § 1408, § 1408(a)(4)(A) (2016)