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Court rules in favor of veterans in divorce case

Eastern New Mexico News - 4/4/2021

Apr. 3—SANTA FE — The New Mexico Supreme Court ruled Friday that courts in the state cannot order a veteran to reimburse a former spouse for a divorce agreement's share of military retirement pay that ended when the veteran opted to receive disability benefits.

The 4-0 decision on Russ v. Russ holds that federal law precluded state courts from enforcing a 2006 divorce agreement between Angela and Jeffery Russ.

The couple separated in 2006 after 13 years of marriage, and entered into a settlement that granted Angela Russ would receive half of Jeffery Russ' disposable retirement pay.

Eight years later, Jeffery Russ waived his entitlement to retired military pay in favor of Combat Related Special Compensation. His former wife filed an emergency motion, and the Bernalillo County district court ruled Jeffery Russ did not escape his financial obligations because he changed the source of compensation and owed $22,423 to his former wife.

The justices concluded that the U.S. Supreme Court's 2017 decision in an Arizona case, Howell v. Howell, applied retroactively and the state could not treat waived military retirement benefits as community property that can be divided in a divorce.

The majority opinion by Justice David K. Thomson acknowledged the result "may seem inequitable" and that "New Mexico courts are not powerless to seek a just result," and the dispute has been ordered back to district court.

"The district court should not rest its decision on the need to indemnify Spouse or replace her portion of Veteran's retirement benefit," the Court explained. "Instead, the district court should direct its attention toward the 'family support obligations (which) are deeply rooted moral responsibilities' rather than an agreement concerning the division of community property."

Justice Julie J. Vargas, who was sworn in two weeks after the case was argued, did not participate in the decision.

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