453 U.S. 210 (1981), 80-5, McCarty v. McCarty

Docket Nº:No. 80-5
Citation:453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589
Party Name:McCarty v. McCarty
Case Date:June 26, 1981
Court:United States Supreme Court

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453 U.S. 210 (1981)

101 S.Ct. 2728, 69 L.Ed.2d 589




No. 80-5

United States Supreme Court

June 26, 1981

Argued March 2, 1981




A regular commissioned officer of the United States Army who retires after 20 years of service is entitled to retired pay. Retired pay terminates with the officer's death, although he may designate a beneficiary to receive any arrearages that remain unpaid at death. In addition, there are statutory plans that allow the officer to set aside a portion of his retired pay for his survivors. Appellant, a Regular Army Colonel, filed a petition in California Superior Court for dissolution of his marriage to [101 S.Ct. 2730] appellee. At the time, he had served approximately 18 of the 20 years required for retirement with pay. Under California law, each spouse, upon dissolution of a marriage, has an equal and absolute right to a half interest in all community and quasi-community property, but retains his or her separate property. In his petition, appellant requested, inter alia, that his military retirement benefits be confirmed to him as his separate property. The Superior Court held, however, that such benefits were subject to division as quasi-community property, and accordingly ordered appellant to pay to appellee a specified portion of the benefits upon retirement. Subsequently, appellant retired and began receiving retired pay; under the dissolution decree, appellee was entitled to approximately 45% of the retired pay. On review of this award, the California Court of Appeal affirmed, rejecting appellant's contention that, because the federal scheme of military retirement benefits preempts state community property law, the Supremacy Clause precluded the trial court from awarding appellee a portion of his retired pay.

Held: Federal law precludes a state court from dividing military retired pay pursuant to state community property laws. Pp. 220-236.

(a) There is a conflict between the terms of the federal military retirement statutes and the community property right asserted by appellee. The military retirement system confers no entitlement to retired pay upon the retired member's spouse, and does not embody even a limited "community property concept." Rather, the language, structure, and history of the statutes make it clear that retired pay continues to be the personal entitlement of the retiree. Pp. 221-232.

(b) Moreover, the application of community property principles to military retired pay threatens grave harm to "clear and substantial"

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federal interests. Thus, the community property division of retired pay, by reducing the amounts that Congress has determined are necessary for the retired member, has the potential to frustrate the congressional objective of providing for the retired service member. In addition, such a division has the potential to interfere with the congressional goals of having the military retirement system serve as an inducement for enlistment and reenlistment and as an encouragement to orderly promotion and a youthful military. Pp. 232-235.

Reversed and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 236.

BLACKMUN, J., lead opinion

JUSTICE BLACKMUN delivered the opinion of the Court.

A regular or reserve commissioned officer of the United States Army who retires after 20 years of service is entitled to retired pay. 10 U.S.C. §§ 3911 and 3929. The question presented by this case is whether, upon the dissolution of a marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws.


Although disability pensions have been provided to military veterans from the Revolutionary War period to the

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present,1 it was not until the War Between the States that Congress enacted the first comprehensive nondisability military retirement legislation. See Preliminary Review of Military Retirement Systems: Hearings before the Military Compensation Subcommittee of the House Committee on Armed Services, 95th Cong., 1st and 2d Sess., 5 (1977-1978) (Military Retirement Hearings) (statement of Col. Leon S. Hirsh, Jr., USAF, Director [101 S.Ct. 2731] of Compensation, Office of the Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics); Subcommittee on Retirement Income and Employment, House Select Committee on Aging, Women and Retirement Income Programs: Current Issues of Equity and Adequacy, 96th Cong., 1st Sess., 15 (Comm.Print 1979) (Women and Retirement). Sections 15 and 21 of the Act of Aug. 3, 1861, 12 Stat. 289, 290, provided that any Army, Navy, or Marine Corps officer with 40 years of service could apply to the President to be retired with pay; in addition, §§ 16 and 22 of that Act authorized the involuntary retirement with pay of any officer "incapable of performing the duties of his office." 12 Stat. 289, 290.

The impetus for this legislation was the need to encourage or force the retirement of officers who were not fit for wartime duty.2 Women and Retirement at 15. Thus, from

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its inception,3 the military nondisability retirement system has been "as much a personnel management tool as an income maintenance method," id. at 16; the system was and is designed not only to provide for retired officers, but also to ensure a "young and vigorous" military force, to create an orderly pattern of promotion, and to serve as a recruiting and reenlistment inducement. Military Retirement Hearings, at 6, 13 (statement of Col. Hirsh).

Under current law, there are three basic forms of military retirement: nondisability retirement; disability retirement; and reserve retirement. See id. at 4. For our present purposes, only the first of these three forms is relevant.4 Since each of the military services has substantially the same nondisability retirement system, see id. at 5, the Army's system may be taken as typical.5 An Army officer who has 20 years of service, at least 10 of which have been active service as a commissioned officer, may request that the Secretary of the

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Army retire him. 10 U.S.C. § 3911.6 An officer who requests such retirement is entitled to "retired pay." This is calculated on the basis of the number of years served and rank achieved. §§ 3929 and 3991.7 An officer who serves for less than [101 S.Ct. 2732] 20 years is not entitled to retired pay.

The nondisability retirement system is noncontributory, in that neither the service member nor the Federal Government makes periodic contributions to any fund during the period of active service; instead, retired pay is funded by annual appropriations. Military Retirement Hearings, at 5. In contrast, since 1957, military personnel have been required to contribute to the Social Security System. Pub.L. 84-881, 70 Stat. 870. See 42 U.S.C. §§ 410(1) and (m). Upon satisfying the necessary age requirements, the Army retiree, the

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spouse, an ex-spouse who was married to the retiree for at least 10 years, and any dependent children are entitled to Social Security benefits. See 42 U.S.C. § 402(a) to(f) (1976 ed. and Supp. IV).

Military retired pay terminates with the retired service member's death, and does not pass to the member's heirs. The member, however, may designate a beneficiary to receive any arrearages that remain unpaid at death. 10 U.S.C. § 2771. In addition, there are statutory schemes that allow a service member to set aside a portion of the member's retired pay for his or her survivors. The first such scheme, now known as the Retired Serviceman's Family Protection Plan (RSFPP), was established in 1953. Act of Aug. 8, 1953, 67 Stat. 501, current version at 10 U.S.C. §§ 1431-1446 (1976 ed. and Supp. IV). Under the RSFPP, the military member could elect to reduce his or her retired pay in order to provide, at death, an annuity for a surviving spouse or child. Participation in the RSFPP was voluntary, and the participating member, prior to receiving retired pay, could revoke the election in order

to reflect a change in the marital or dependency status of the member or his family that is caused by death, divorce, annulment. remarriage, or acquisition of a child. . . .

§ 1431(c). Further, deductions from retired pay automatically cease upon the death or divorce of the service member's spouse. § 1434(c).

Because the RSFPP was self-financing, it required the deduction of a substantial portion of the service member's retired pay; consequently, only about 15% of eligible military retirees participated in the plan. See H.R.Rep. No. 92-481, pp. 4-5 (1971); S.Rep. No. 92-1089, p. 11 (1972). In order to remedy this situation. Congress enacted the Survivor Benefit Plan (SBP) in 1972. Pub.L. 92-425, 86 Stat. 706, codified as amended at 10 U.S.C. §§ 1447-1455 (1976 ed. and Supp. IV). Participation in this plan is automatic unless the service member chooses to opt out. § 1448(a).

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The SBP is not entirely self-financing; instead, the Government contributes to the plan, thereby rendering participation in the SBP less expensive for the service member than participation in the RSFPP. Participants in the RSFPP were given the option of continuing under that plan or of enrolling in the SBP. Pub.L. 92-425, § 3, 86 Stat. 711, as amended by Pub.L. 93-155, § 804, 87 Stat. 615.


Appellant Richard John McCarty and appellee Patricia Ann McCarty were married in Portland, Ore., on March 23, 1957, while [101 S.Ct. 2733] appellant was in his second year in medical school at the University of...

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