The U.S. Supreme Court has agreed to consider whether divorce settlements can protect a former spouse’s share of military retirement pay when that amount is later reduced or eliminated by disability compensation. The dispute centers on the enforceability of a private agreement between former spouses.

Federal law allows former spouses to receive up to half of a service member’s time based military retirement pay. Medical based military retirement pay and Veterans Affairs disability pay, however, are protected and cannot be divided.

The case, Marschner v. Marschner, was accepted by the high court earlier this month. Roxane Marschner is seeking to enforce a provision in her divorce settlement with North Dakota Army National Guard soldier Richard Marschner.

Under that provision, Richard agreed to pay Roxane the equivalent of her portion of military retirement pay if disability compensation later offset any of it. That promise now sits at the center of the Supreme Court fight.

The couple married in 1994 and divorced 22 years later. Their settlement provided that Roxane would receive a percentage of Richard’s military and federal civilian benefits after he retired.

Richard was later medically retired because of service connected injuries. He received medical retirement pay and VA disability compensation, neither of which may be divided under the Uniformed Services Former Spouses Protection Act.

Roxane returned to court, arguing that Richard had agreed to pay her if she did not receive her share of the benefits. The lower court ruled in her favor.

Richard then petitioned the North Dakota Supreme Court. That court concluded that the provision in the divorce settlement was unenforceable, setting up Roxane’s request for review by the U.S. Supreme Court.

Roxane argued that federal law and an earlier Supreme Court ruling restrict courts from imposing provisions that divide disability compensation. She maintained that those restrictions do not apply to private agreements negotiated by spouses.

She also pointed to Virginia, Illinois, Nevada and Alaska, where courts have allowed enforcement of such agreements. These provisions are known as indemnification provisions in divorce settlements.

Roxane said a ruling from the U.S. Supreme Court was needed to provide equity across the legal system. The conflicting approaches have left the enforceability of such provisions dependent on the state handling the dispute.

Richard’s attorneys have argued that state courts lack authority to divide benefits protected by federal law. They contend that the North Dakota district court’s order requiring Richard to pay Roxane is therefore invalid.

Attorney Johanna Clyborne of Minnesota based Brekke, Clyborne and Ribich told Military Times that agreements like the Marschners’ occur “more than people realize.” She said veterans and attorneys often do not understand the federal protections covering disability benefits and medical retirement payments.

“Congress has spoken on this issue, right, and it is non-divisible. There’s going to be different sorts of interpretations, but Congress thought that the veterans were entitled to disability benefits and basically prioritized, and to allow them to be stripped by a state court in very narrow circumstances is not what was intended,” Clyborne said.

Previous cases have also addressed retirement pay and disability benefits in military divorces. In Howell v. Howell, the Supreme Court ruled in 2017 that state courts cannot require a veteran to compensate a spouse for half of retirement pay after the veteran waived part of it to receive nontaxable VA disability compensation.

The Supreme Court has not scheduled a date for Marschner v. Marschner, though the case could be heard as early as January. Its eventual ruling could clarify whether private settlement language can be enforced when federally protected benefits change the payments a former spouse expected.

Clyborne said the case may affect divorce agreements involving veterans who receive Combat-Related Specialty Compensation, Concurrent Retirement Disability Pay and other benefits. Those agreements could face the same central dispute over federal protections and promises made during divorce negotiations.

“Hopefully it will settle a lot of questions folks have been wrestling with,” Clyborne said. Until the Supreme Court rules, the Marschners’ dispute remains a consequential test of where private agreements end and federal benefit protections begin.