453 U.S. 210 (1981)
Richard John McCarty and Patricia Ann McCarty were married in Portland, Oregon, on March 23, 1957, while Richard was in his second year of medical school at the University of Oregon.1 During his fourth year, Richard commenced active duty in the United States Army. Upon graduation, he served successive tours of duty in Pennsylvania, Hawaii, Washington, D.C., California, and Texas. After completing his duty in Texas, Richard was assigned to Letterman Hospital on the Presidio Military Reservation in San Francisco, where he became Chief of Cardiology.2 At the time the suit was instituted in 1976, Richard held the rank of Colonel and had served approximately 18 of the 20 years required for retirement with pay.3
The McCartys separated on October 31, 1976. On December 1 of that year, Richard filed a petition in the Superior Court of California in and for the City and County of San Francisco requesting dissolution of the marriage.4 In his petition, Richard requested that all listed assets, including all military retirement benefits, be confirmed to him as his separate property.5 Patricia responded by requesting dissolution and contending that Richard had no separate property and that his military retirement benefits were subject to disposition by the court.6
On November 23, 1977, the Superior Court entered findings of fact and conclusions of law holding that Richard was entitled to an interlocutory judgment dissolving the marriage.7 Richard was awarded custody of the couple's three minor children, and Patricia was awarded spousal support.8 The court found that the community property of the parties consisted of two automobiles, cash, the cash value of life insurance policies, and an uncollected debt.9 It allocated this property between the parties.10 In addition, the court held that appellant's military pension and retirement rights were subject to division as quasi-community property.11 Accordingly, the court ordered appellant to pay to appellee, so long as she lives, that portion of his total monthly pension or retirement payment which equals one-half (1/2) of the ratio of the total time between marriage and separation during which appellant was in the United States Army to the total number of years he has served with the Army at the time of retirement.12 The court retained jurisdiction to make such determination at that time and to supervise distribution.13
Richard sought review of the portion of the decree awarding Patricia an interest in the retired pay. The California Court of Appeal, First Appellate District, affirmed the award.14 The California Supreme Court denied Richard's petition for hearing.15 Richard retired from the Army on September 30, 1978, after 20 years of active duty and began receiving retired pay; under the decree of dissolution, appellee was entitled to approximately 45% of that retired pay.16 The U.S. Supreme Court postponed jurisdiction in 1980 and later proceeded to the merits of the appeal.17
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?18
State family and family-property law must do major damage to clear and substantial federal interests before the Supremacy Clause will demand that state law be overridden.19 The pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition.20
Yes. The California Superior Court divided Richard McCarty's military retired pay as quasi-community property under state law.21 The federal military retirement statutes establish retired pay as a personal entitlement payable to the retiree alone.22 Provisions allow the service member to designate beneficiaries for arrearages and to elect survivor annuities that may exclude an ex-spouse entirely.23 This state court division directly conflicts with those terms because it treats the pay as divisible community property rather than the retiree's personal entitlement.24
The division also injures federal objectives by diminishing the amounts Congress determined necessary for the retiree.25 It reduces the incentive for enlistment, re-enlistment, and orderly retirement that the nondisability retirement system was designed to create.26 The facts that Richard retired on September 30, 1978, after 20 years and that Patricia was awarded approximately 45 percent of the pay under the decree illustrate the precise injury to the federal scheme.27
Yes, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws.28
Related opinions on this issue
Joined by Justices Brennan And Stewart
Justice Rehnquist dissented on the ground that the majority failed to apply the Hisquierdo test requiring Congress to have positively required by direct enactment that state law be pre-empted.29 He argued that the majority relied on vague implications from tangentially related statutes and on congressional inaction rather than any direct enactment addressing military retired pay.30 Rehnquist maintained that the analysis was inconsistent with prior cases such as Wissner and Hisquierdo because those decisions turned on explicit statutory language protecting designated beneficiaries or prohibiting attachment, language absent from the military retirement statutes.31
He concluded that the decision was both unprecedented and wrong because it expanded preemption beyond the narrow circumstances previously recognized.32