Whether state courts may enforce a marital settlement agreement or divorce decree that requires a veteran to waive or assign federal disability benefits or military retirement pay in violation of the Supremacy Clause and federal statutes including the Uniformed Services Former Spouses' Protection Act and 38 U.S.C. § 5301

No question identified. : To the Honorable John G. Roberts, Chief Justice, Circuit Justice for the Fourth Circuit Court of Appeals and including the State of Virginia: Pursuant to 28 U.S.C. § 2101(c) and Supreme Court Rule 13.5, Petitioner, Michael Yourko, for good cause, respectfully requests an extension of 60 days to file a Petition for a Writ of Certiorari to the Virginia Supreme Court in the above-captioned case from the latter court’s June 28, 2023 order denying Petitioner’s petition for rehearing of the Court’s earlier order or opinion. The Virginia Supreme Court issued an opinion on March 30, 2023, reversing the Virginia Court of Appeals, which issued a decision in favor of Petitioner on December 21, 2021. The Virginia Supreme Court’s order denying Petitioner’s application for a rehearing, and its opinion, and that of the Virginia Court of Appeals are attached to this application. (Attachments 1, 2 and 3, respectively). The petition for a writ of certiorari in this Court from the Virginia Supreme Court’s June 28, 2023 order is due on or before Tuesday, September 26, 2023. Pursuant to the Rules of the Supreme Court, Rules 13.5 and 22, Petitioner is filing this application on or before a date 10 days prior to Tuesday, September 26, 2023. JURISDICTION OF THE COURT This Court has jurisdiction over this application and over the Petition for Writ of Certiorari to the Supreme Court of the State of Virginia pursuant to 28 U.S.C. § 2101(c) and 28 U.S.C. § 1257, from the latter court’s June 28, 2023 denial of Petitioner’s petition for rehearing. SUMMARY OF THE CASE In Howell v. Howell, 137 S. Ct. 1400 (2017), this Court ruled that federal law preempted state law based on this Court’s decisions in Mansell v. Mansell, 490 U.S. 581 (1989), and thus, state courts could not force veterans to use their veterans’ disability benefits without a specific federal authorization to do so. The Virginia Court of Appeals followed Howell and held that a marital agreement in which Petitioner agreed to dispossess himself of federal disability pay in violation of federal law and in violation of Howell was void ab initio. (Attachment 3). The Supreme Court of Virginia reversed, effectively holding that while the agreement by and between Petitioner and Respondent required Petitioner to dispossess himself of federal disability pay in violation of federal law, the agreement was a contract that could not be voided, even where federal law holds that such agreements are illegal. Congress intended for military retirement pay to be the entitlement to the veteran, which cannot be judicially divided in divorce. Thus, it enacted the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C.S. § 1408. However, if the court indeed finds the contract valid, it must be limited. The National Defense Authorization Act (NDAA) for 2017, signed into law in December 2016, drastically changes the way military retired pay can be divided in divorce cases. The amendments to the USFSPA in the new NDAA, however, preempt state laws by mandating the method state courts must use in dividing military retired pay. The method required by the new USFSPA is the so-called “frozen benefit” approach. It requires that retired pay be established (or “frozen”) based on the member’s rank and years of service at the time the court order dividing military retired pay (typically the final divorce decree) is entered. This is accomplished by creating a “hypothetical” retirement division as if the servicemember retired at the time of the order, even if he or she was not yet eligible to retire on that date. Any other disposition of federal benefits is contrary to federal law and preempted, whether in the form of a court order or an agreement by and between the parties. Indeed, 38 U.S.C. § 5301(a)(3) specifically voids any agreements wherein a beneficiary of veterans’ disability pay agrees in a contract for consideration to dispossess himself or herself of more than that which would be allowed b