In a Decision – Fattore v. Fattore, (a "Reported Decision") >> the Court Held:
The Appellate Division reversed and remanded the Trial Court’s decision because the Opinion of the United States Supreme Court specifically pre-empted the New Jersey Court’s requirement of indemnification. The Appellate Division held that a trial court may not indemnify a payee spouse when the payor spouse waives a military pension and receives veteran disability retirement benefits. However, a court is free to treat the pension waiver as a change in circumstances and may award the payee alimony or modify it.
The United States Supreme Court had subsequently ruled that federal law preempted states from treating waived military retirement pay as divisible marital property.. In this instance though, the Appellate Division agreed that the military disability benefits in the stead of the pension constituted a substantial change in circumstances warranting consideration of alimony despite the parties' waiver.