Following state courts across the country that have begun implementing the United States Supreme Court’s unanimous decision in Howell v. Howell, the Court of Appeals of Kansas has held that state courts do not have jurisdiction to divert veterans’ disability pay to former spouses, even where the parties had previously agreed to divide such benefits in a divorce judgment by consent.
The Court held that the United States Congress has directly and specifically legislated in the area of veterans’ disability benefits through its enumerated powers. As such, the state courts were preempted by the Supremacy Clause of the United States Constitution, article VI, cl. 2, from diverting such benefits, or vesting them in someone other than the beneficiary. See In re Babin, 2019 Kan. App. LEXIS 6 (February 1, 2019).
The Court of Appeals noted that Howell had overruled state cases that had previously relied on the sanctity of contract to escape the reach of federal preemption. See Slip Opinion at p. 16. “The district court lacked jurisdiction to order such a division of benefits, especially over [the servicemember’s] objection to the division of property.” Id.
This is yet another case that confirms the breadth and reach of the Supreme Court’s decision in Howell. The Law Offices of Carson J. Tucker filed the amicus curiae brief on behalf of Veterans of Foreign Wars and Operation Firing for Effect in the United States Supreme Court in the Howell case. This decision confirms the arguments and principles put forth in that brief, and confirmed by the United States Supreme Court’s unanimous decision that federal law absolutely preempts state law in this area and state courts simply have no jurisdiction or authority to order otherwise, even where the parties have previously agreed to divide the disability pay. All such orders are preempted.
Published by Carson J Tucker, JD MSEL
Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs.
Board of Directors, Michigan Defense Trial Counsel
Amicus Committee Co-Chair, Michigan Defense Trial Counsel
Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia.
United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003
Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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