Yourko v. Yourko, 884 S.E.2d 799

Husband and Wife entered a negotiated property settlement reflected in a Military Pension Division Order (MPDO) awarding Wife 30% of Husband’s "disposable military retired pay," with paragraph 9 guaranteeing Wife $1,202.70/month and an indemnification clause if Husband’s actions (e.g., waiving retirement for disability) reduced that amount.
DFAS later calculated Husband’s disposable retired pay as much lower because portions were classified as non-divisible disability pay, reducing Wife’s DFAS-ordered share to $253.20/month.
Husband moved to reopen and amend the final decree and MPDO (after 21 days), arguing the indemnification clause violated federal law (USFSPA/Howell) and thus was void ab initio, and that the court should correct the award.
The circuit court denied Husband’s motion, finding it lacked authority to amend after 21 days and treating the MPDO as an agreement the court had enforced; Husband appealed.
The Court of Appeals reversed, holding Howell preempted contractual indemnification tied to military retirement and declared the indemnification clause void ab initio; Wife appealed to the Virginia Supreme Court.
The Virginia Supreme Court reversed the Court of Appeals, holding Howell and Mansell do not bar voluntarily negotiated indemnification provisions in property settlement agreements and reinstated the circuit court’s dismissal.

Issue	Wife's Argument	Husband's Argument	Held
Whether federal law (USFSPA as interpreted in Howell/Mansell) preempts and renders void indemnification provisions in a negotiated property settlement that guarantee a former spouse a set level of payments if the veteran later waives retirement pay for disability	Howell only prohibits courts from ordering indemnification; it does not invalidate voluntary contractual indemnification between spouses	Indemnification, even by contract, effectively replicates division of disability pay and is preempted by federal law under Howell/Mansell	Court held Howell/Mansell do not bar voluntary, contractual indemnification in negotiated property settlements; parties may contract to guarantee payments and courts may enforce those promises
Whether Husband could attack/modify the MPDO after 21 days on the ground that the indemnification clause was void ab initio	(implicit) the MPDO is a final order but an indemnification clause void under federal law can be attacked beyond 21 days	Indemnification clause is void ab initio so the 21-day limitation should not bar relief	Court held the MPDO was a valid agreement; Husband’s objections were waived and circuit court correctly dismissed his post-21-day amendment request; indemnification was not void ab initio

McCarty v. McCarty, 453 U.S. 210 (1981) (Congress did not intend state courts to treat military retirement pay as judicially divisible property absent federal authorization)
Mansell v. Mansell, 490 U.S. 581 (1989) (USFSPA grants limited state authority but excludes military retirement pay waived for veterans’ disability benefits from division)
Howell v. Howell, 581 U.S. 214 (2017) (state courts may not order indemnification or reimbursement that effectively replaces retirement pay waived for disability benefits; such orders are preempted)
Owen v. Owen, 14 Va. App. 623 (1992) (Virginia Court of Appeals enforced a negotiated property settlement and indemnification provision guaranteeing set pension payments despite later waiver for disability)