Oshiro v. Oshiro: Considering, but Not Dividing, Military Disability Benefits in Nevada Alimony Determinations

Oshiro v. Oshiro: Considering, but Not Dividing, Military Disability Benefits in Nevada Alimony Determinations

I. Introduction

The Nevada Supreme Court’s decision in Oshiro v. Oshiro, 141 Nev., Advance Opinion 59, marks a significant clarification in Nevada family law at the intersection of state alimony doctrine and federal protections for veterans’ disability benefits.

The case arose out of a long-term marriage between Cherlyn Oshiro and her husband, a Vietnam-era veteran with a service-connected disability who received federal military disability benefits as his primary source of income. After nearly two decades of relying jointly on those benefits and Social Security income, the parties divorced. They resolved their property division, leaving only alimony in dispute.

At the heart of the appeal was a narrow but consequential statutory question:

  • Under NRS 125.165, which forbids Nevada courts from attaching, levying, seizing, assigning, or “otherwise dividing” federal service-connected disability benefits in making an alimony award, may a court nonetheless consider the existence and amount of those benefits when assessing alimony?

The husband (the veteran) argued that the statute’s protections meant the court could not even take his disability benefits into account when determining alimony. The district court rejected that position, considered the full picture of the parties’ finances—including the disability payments—and awarded Cherlyn $2,000 per month in alimony. This resulted in the veteran paying roughly 96.6% of his Social Security toward alimony, while continuing to live primarily on his disability income.

The Nevada Supreme Court affirmed, holding that:

  • NRS 125.165 bars direct division or seizure of military disability benefits to pay alimony, but it does not bar courts from considering those benefits when evaluating need and ability to pay under NRS 125.150.

The decision aligns Nevada with the national majority view, clarifies the scope of NRS 125.165, distinguishes between alimony and community property division, and leaves open—but clearly identifies—a future question regarding awards that could only be paid out of disability benefits.

II. Summary of the Opinion

A. Factual Background

Cherlyn and her husband (a disabled veteran) married in 1999 in Las Vegas when they were both nearing 50. The husband had previously served eight years in the military, including four in the Vietnam War, and had sustained a service-connected injury. One year into the marriage he applied for and began receiving military disability benefits.

During the marriage:

  • The parties pooled his disability income with their employment earnings in a joint bank account.
  • Cherlyn stopped working after a car accident in 2007.
  • The husband retired in 2013, leaving the couple reliant on:
    • His military disability benefits; and
    • Both parties’ Social Security benefits.
  • As his disability worsened, Cherlyn acted as his primary caregiver.

At the time of the divorce proceedings:

  • Husband received:
    • $3,946.25 per month in military disability benefits; and
    • $2,071 per month in Social Security;
    • for a total of $6,017.25 per month.
  • Cherlyn received:
    • $998 per month in Social Security.
  • Combined, the parties’ monthly income was approximately $7,015.25.

Cherlyn requested $3,400/month in alimony—roughly half of the couple’s historical combined monthly income. The husband argued the court could consider only Social Security income and not disability benefits, and thus the “proper” award would be $536.50, splitting the difference between their respective Social Security payments.

B. District Court Ruling

The district court considered the evidence of:

  • Each party’s income sources and financial condition;
  • Age, health, and inability to work;
  • Standard of living during the marriage;
  • Cherlyn’s role as caretaker and her post-separation circumstances (alone, out-of-state, minimal resources).

The court:

  • Recognized that NRS 125.165 forbids dividing disability benefits to pay alimony.
  • Nevertheless considered the disability income in deciding the husband’s ability to pay.
  • Found he was the “main income producer” and had the ability to pay alimony.
  • Set alimony at $2,000 per month.

This amount effectively required the husband to devote nearly all of his Social Security benefit to alimony, thus leaving him to rely almost entirely on his disability income, but the court did not expressly order that any portion of the disability benefits themselves be paid over.

C. Issues on Appeal

On appeal, the husband raised three core arguments:

  1. Statutory bar on “consideration”: NRS 125.165 not only prohibits direct division of disability benefits, but also prohibits courts from even considering such benefits in alimony determinations.
  2. De facto division: By requiring him to pay $2,000 in alimony—96.6% of his Social Security—the district court had effectively and impermissibly equitably divided his disability benefits.
  3. Compelling reasons requirement: The district court allegedly erred by not providing a “compelling reason” under NRS 125.150(1)(b), which the husband contended applied to the alimony award.

D. Nevada Supreme Court’s Holdings

The Supreme Court affirmed in full, holding that:

  1. NRS 125.165 does not bar courts from considering military disability benefits when setting alimony. It only prohibits direct attachment, levy, seizure, assignment, or division of the benefits themselves.
  2. The alimony award—though high relative to the husband’s Social Security—is supported by substantial evidence and does not constitute an abuse of discretion.
  3. NRS 125.150(1)(b) (the “compelling reason” standard) applies to community property division, not to alimony; alimony is governed by NRS 125.150(1)(a).
  4. The court reserves for a future case the harder question whether NRS 125.165 would invalidate an alimony award that could only be paid by invading disability benefits.

III. Detailed Analysis

A. Governing Legal Framework for Alimony in Nevada

Nevada’s alimony statute, NRS 125.150(1)(a), authorizes courts to award alimony “as appears just and equitable.” Under NRS 125.150(9), courts “shall consider” a nonexclusive list of 11 factors; the first and foundational factor is the “financial condition of each spouse.”

The Court reinforces several core points of Nevada alimony law:

  • Alimony is needs-based and ability-based:
    • Citing Rodriguez v. Rodriguez, 116 Nev. 993, 999, 13 P.3d 415, 419 (2000), the Court reiterates that alimony is “financial support paid from one spouse to the other whenever justice and equity require it.”
    • Citing Kogod v. Cioffi-Kogod, 135 Nev. 64, 68, 439 P.3d 397, 401 (2019), it emphasizes that alimony is fundamentally about the receiving spouse’s need and the paying spouse’s ability to pay.
  • “Financial condition” is broad:
    • It includes all sources of income—such as Social Security, disability benefits, and retirement pay— along with assets, expenses, and overall financial need.
  • Abuse of discretion review:
    • Citing Wolff v. Wolff, 112 Nev. 1355, 1359, 929 P.2d 916, 918–19 (1996), and Williams v. Williams, 120 Nev. 559, 566, 97 P.3d 1124, 1129 (2004), the Court reiterates that alimony awards are reviewed for abuse of discretion and upheld if supported by substantial evidence.

However, NRS 125.150 is expressly qualified: it begins “[e]xcept as otherwise provided in NRS 125.165,” which introduces the special treatment of military disability benefits.

B. Textual Interpretation of NRS 125.165

NRS 125.165 provides that in making an award of alimony, a court shall not:

  1. “Attach, levy or seize by or under any legal or equitable process” federal disability benefits awarded to a veteran for a service-connected disability; or
  2. “Make an assignment or otherwise divide” such benefits.

The husband argued that this language should be expanded to mean courts may not even consider the existence or value of those benefits in alimony calculations. The Court rejects this argument on multiple interpretive grounds.

1. Plain Language and Noscitur a Sociis

Applying basic rules of statutory construction (citing Mason v. Cuisenaire, 122 Nev. 43, 50, 128 P.3d 446, 450 (2006)), the Court begins with the plain text. On its face, NRS 125.165 prohibits actions taken “against” the benefits:

  • “Attach,” “levy,” and “seize” are classic collection or enforcement verbs.
  • “Make an assignment” and “otherwise divide” likewise concern legally reallocating or splitting a specific asset.

The Court invokes the canon of noscitur a sociis (words are known by the company they keep), citing Building Energetix Corp. v. EHE, LP, 129 Nev. 78, 85, 294 P.3d 1228, 1234 (2018) and Ford v. State, 127 Nev. 608, 622 n.8, 262 P.3d 1123, 1132 n.8 (2011). Because the listed verbs all relate to collection/enforcement mechanisms:

  • The phrase “otherwise divide” must be understood in that same context—i.e., as direct legal action against the benefits themselves, not a ban on courts passively recognizing the income stream.

If “consider” were effectively read into the statute, it would:

  • Ignore the shared collection-related meaning of the verbs; and
  • Conflict with NRS 125.150(9), which mandates that courts “shall consider” each spouse’s financial condition.

Relying on Merritt v. Merritt, 40 Nev. 385, 389–90, 160 P. 22, 22 (1916), the Court reiterates that courts lack “the power nor the right to read into [a] statute anything not there found.” Thus, on its face, NRS 125.165 does not prohibit mere consideration of disability benefits.

2. Legislative History: Removal of “Consider”

The Court nevertheless turns to legislative history (consistent with cases such as Pitmon v. State, 131 Nev. 123, 129, 352 P.3d 655, 659 (2015); Urias v. First Judicial District Court, 141 Nev., Adv. Op. 24, 568 P.3d 576, 580 (2025); and Sandpointe Apartments v. Eighth Judicial District Court, 129 Nev. 813, 828, 313 P.3d 849, 859 (2013)) to confirm the plain-text reading.

Critically:

  • As originally introduced in 2015, A.B. 140 would have expressly prohibited courts from “considering” military disability benefits when awarding alimony.
  • Legislative sponsors initially stated the goal was to bring Nevada into compliance with 38 U.S.C. § 5301, the federal anti-attachment statute for veterans’ benefits.
  • During hearings, lawmakers recognized that a “no consideration” rule went beyond § 5301 by blinding courts to a key component of a divorcing couple’s financial realities.
  • In response, the Legislature removed “consider” from the bill and replaced it with the present language—“attach, levy, or seize” and “make an assignment or otherwise divide”—to more closely track § 5301’s anti-attachment terms.

This history is powerful evidence that:

  • The Legislature deliberately rejected a rule preventing courts from considering disability benefits;
  • It intended only to bar direct enforcement mechanisms against those benefits, not their inclusion in a financial-condition analysis.

C. Interaction with Federal Law: 38 U.S.C. § 5301 and Rose v. Rose

The Legislature’s reference to 38 U.S.C. § 5301 is crucial. That federal provision declares that veterans’ benefits:

  • Are exempt from the claims of creditors; and
  • Shall not be liable to attachment, levy, or seizure by or under any legal or equitable process.

In Rose v. Rose, 481 U.S. 619 (1987), the U.S. Supreme Court held that:

  • § 5301 was “not intended to protect the veteran against claims by his family,” including support obligations, as emphasized in Justice O’Connor’s concurrence.
  • Federal law did not preclude a state court from enforcing child support orders—even where the veteran’s only income consisted of disability benefits.

Thus, the federal anti-attachment statute shields veterans’ benefits from traditional creditors (e.g., banks, typical civil judgment creditors) but not from family support obligations. The Nevada Legislature, by amending AB 140 to mirror the federal attachment language and removing “consider,” showed that it intended to occupy a similar, not more expansive, space—at least in terms of alimony calculation.

D. Mansell and Howell: Property Division vs. Alimony

The veteran relied heavily on two U.S. Supreme Court precedents:

  1. Mansell v. Mansell, 490 U.S. 581 (1989); and
  2. Howell v. Howell, 581 U.S. 214 (2017).

In Mansell, the Court interpreted the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408, holding:

  • When a veteran waives military retirement pay in order to receive disability benefits, the resulting disability payments cannot be treated as divisible “disposable retired pay” or community property.

In Howell, the Court extended that logic:

  • State courts may not indirectly compensate an ex-spouse for a veteran’s post-divorce election to waive retirement pay in favor of disability benefits by increasing that spouse’s share of other community property.

The Nevada Supreme Court in Oshiro underscores several limitations of those federal cases:

  • They are expressly about community property division, not alimony.
  • They address the specific scenario in which retirement pay is waived and converted to disability benefits.
  • Here, the husband does not receive military retirement pay, only disability benefits.
  • Most importantly, the U.S. Supreme Court in Howell, 581 U.S. at 222, explicitly left state courts free to consider disability benefits when evaluating alimony.

This reading is consistent with Nevada’s earlier decision in Martin v. Martin, 138 Nev. 786, 790–91, 520 P.3d 813, 817–18 (2022), where the Court adopted a narrow view of Mansell and refused to extend it to preempt enforcement of a divorce settlement.

E. Distinguishing Alimony from Community Property Division

The Court reinforces a foundational conceptual distinction in Nevada family law, citing Shydler v. Shydler, 114 Nev. 192, 197–98, 954 P.2d 37, 40 (1998):

  • Community property division is a matter of legal entitlement, allocating to each party the property rights accrued during marriage.
  • Alimony is equitable and forward-looking, designed to address the “post-divorce needs and rights” of the spouses.

This distinction has two important consequences in Oshiro:

  1. NRS 125.150(1)(b), which requires “compelling reasons” for an unequal division of community property, has no application to alimony. The husband’s argument invoking that subsection therefore fails. The district court’s citation of subsection (1)(b) was unnecessary but harmless.
  2. Cases like Mansell and Howell—squarely about property division—do not control the alimony analysis.

F. Precedents and National Consensus on Considering Disability Benefits

The Court notes that an “overwhelming majority” of jurisdictions allow courts to consider veterans’ disability benefits when setting alimony:

  • In re Marriage of Morales, 214 P.3d 81, 85 (Or. Ct. App. 2009)
  • Marriage of Strong v. Strong, 8 P.3d 763, 770 (Mont. 2000)
  • Clauson v. Clauson, 831 P.2d 1257, 1263 n.9 (Alaska 1992)
  • Urbaniak v. Urbaniak, 807 N.W.2d 621, 626 (S.D. 2011)

These courts rely heavily on Rose v. Rose and Congress’s intent that disability benefits support not only the veteran but also their dependents. Accordingly, they hold that:

  • While disability benefits may be protected from direct division, they are fair game as income for purposes of assessing support.

The Nevada Supreme Court also references its own Court of Appeals decision in Conte v. Conte, No. 87945-COA, 2025 WL 1770864 (Nev. Ct. App. June 25, 2025), where:

  • The district court erred by refusing to consider military disability benefits in an alimony determination.

The only major outlier is the Alabama Supreme Court’s decision in Ex parte Billeck, 777 So. 2d 105 (Ala. 2000), which held that considering disability benefits in alimony calculations would circumvent Mansell. Oshiro explicitly rejects Billeck’s expansive reading of Mansell and sides with the national majority.

G. Application: Abuse of Discretion and Substantial Evidence

Even after resolving the statutory questions, the Court still had to assess whether the specific award—$2,000 per month, requiring the veteran to devote nearly all of his Social Security income—was so inequitable as to be an abuse of discretion.

Under the abuse of discretion standard (citing Williams), a ruling supported by substantial evidence—“that which a sensible person may accept as adequate to sustain a judgment”—will not be disturbed.

The Court highlights that the district court:

  • Considered the full suite of NRS 125.150(9) factors:
    • Income and financial condition of both parties;
    • Ages and health;
    • Earning capacities;
    • Contributions to the marital home and the husband’s care;
    • Marital standard of living; and
    • Cherlyn’s post-divorce needs and circumstances (minimal resources, alone in Virginia, little earning capacity).
  • Found that Cherlyn’s financial need “is great and exceeds her social security income.”
  • Found that the husband, considering “all financial resources available” to him, had the ability to pay $2,000 monthly alimony.

The husband chose to attack the legal basis for considering disability benefits, rather than fully developing a factual claim that the amount was unsupported. On this record, the Court concluded that:

  • The district court’s award, though demanding, was within its “broad authority” to make just and equitable alimony awards.

H. The “Line” Under NRS 125.165 and the Reserved Question

The Court candidly acknowledges that this case lies close to the statutory boundary set by NRS 125.165. Requiring a veteran to pay 96.6% of his Social Security benefit and leaving him effectively to live on disability income might look functionally similar to drawing directly on disability benefits.

However, two features preserve the award:

  1. Formally, the order does not attach or divide disability benefits. The veteran is left free, in theory, to use them as he wishes.
  2. The district court expressly found that, considering “all financial resources available” to the husband (including some indication of support from his daughter), he could pay $2,000 per month in alimony without having to invade his disability benefits.

The Court notes that NRS 125.165 is broader than some peer-state provisions and, unlike 38 U.S.C. § 5301, explicitly applies the anti-attachment language to both community property division and alimony. Contrasting examples:

  • California’s statute, Cal. Civ. Proc. Code § 483.013, expressly does not extend to child and spousal support enforcement.
  • Wyoming’s reference statute, Wyo. Stat. Ann. § 20-2-114(b), the model for earlier drafts of NRS 125.165, limits itself to property division, not alimony.

Because NRS 125.165 explicitly addresses alimony, and because its text is stronger than § 5301 in that regard, a future case may squarely present whether:

  • An alimony order that cannot be paid except by drawing on VA disability benefits would violate NRS 125.165’s anti-attachment/anti-division commands.

The Court expressly reserves that “more difficult question” for another day. In Oshiro, the line is approached but not crossed.

IV. Simplifying the Core Legal Concepts

A. Alimony vs. Community Property: Two Different Questions

  • Community property division answers:
    • “Who owns what?”
    It divides the property acquired during the marriage according to legal entitlements.
  • Alimony answers:
    • “What financial support is fair going forward?”
    It is based on post-divorce need and ability to pay, using an equitable, forward-looking analysis.

This distinction explains why federal rules about what is or is not “community property” (e.g., Mansell/Howell) do not automatically govern alimony.

B. Military Disability Benefits and “Anti-Attachment” Rules

Military disability benefits are payments from the federal government to veterans whose disabilities are connected to their service. Federal law, 38 U.S.C. § 5301, protects these benefits by saying:

  • They cannot be seized or attached by typical creditors.

An anti-attachment statute (like § 5301 or NRS 125.165) is essentially a rule that says:

  • “Courts and creditors cannot grab this particular pot of money directly to satisfy debts.”

But that does not necessarily mean a court must pretend that the money does not exist at all. For family support, federal law (especially Rose v. Rose) allows courts to consider disability benefits as part of a veteran’s income in assessing support obligations.

C. “Consider” vs. “Divide”

The core statutory distinction in Oshiro is:

  • To “consider” benefits means to take them into account in determining how much support is fair, as part of a much broader picture of the parties’ finances.
  • To “divide” benefits means to legally order that a portion of the benefit stream itself be paid over to someone else (e.g., an ex-spouse), or directly attach or seize it.

Nevada’s NRS 125.165 prohibits the latter—not the former. The Court’s holding is essentially:

  • “You can look, but you can’t touch.”

D. “Abuse of Discretion” and “Substantial Evidence”

When the Supreme Court reviews an alimony award, it does not re-weigh all the facts; it asks only:

  • Did the district court exercise its discretion in a manner that is reasonable and supported by evidence that a sensible person could accept as adequate?

If yes, the appellate court will not interfere—even if it might have set a different amount in the first instance. That deference is particularly important in alimony, which involves judgment calls about fairness and the parties’ needs.

V. Likely Impact and Future Directions

A. Trial Court Practice in Nevada

After Oshiro, trial courts in Nevada have clear guidance:

  • They must consider the full financial condition of each spouse, including:
    • Military disability benefits;
    • Social Security;
    • Any other income, assets, and support received.
  • They may not directly attach or divide federal military disability benefits to satisfy alimony.
  • They have wide discretion to set alimony—as long as they:
    • Respect the anti-attachment commands of NRS 125.165; and
    • Support their award with substantial evidence and proper application of NRS 125.150’s factors.

Courts also now know that NRS 125.150(1)(b) and its “compelling reason” requirement do not constrain alimony decisions. Confusion between property division standards and alimony standards should diminish.

B. Implications for Disabled Veterans and Their Spouses

For disabled veterans:

  • Your military disability benefits remain protected from direct division as property or as a specific source of alimony payment under NRS 125.165.
  • However, courts will still consider those benefits as part of your income when evaluating how much alimony you can fairly be required to pay.

For spouses of disabled veterans:

  • You are not barred from seeking alimony simply because your spouse’s primary income is a protected disability benefit.
  • The court may properly recognize that, for many years, the household lived on those benefits and that those benefits remain a real resource from which your former spouse can support you.

C. Settlement Negotiations and Litigation Strategy

Attorneys in Nevada must now assume that:

  • Arguments urging the court to “ignore” military disability income in alimony calculations are not viable.
  • At the same time, orders that explicitly seize or assign portions of disability payments themselves remain vulnerable under NRS 125.165.

Strategically, this encourages:

  • Transparent financial disclosure that fully includes disability benefits.
  • Creative structuring of support based on overall income and resources, without labeling disability benefits as the specific source of payment.

D. The Unresolved Question and Potential Future Litigation

The Court leaves open a critical future issue: whether NRS 125.165 would invalidate an alimony award that:

  • Is so large, and the veteran’s other income so limited, that the veteran cannot meet the obligation without using disability benefits.

Such a scenario could pose a tension between:

  • State policy favoring fair spousal support; and
  • Statutory protections for disability benefits that are stronger in Nevada than under federal law alone.

Future cases may test:

  • Whether there is a constitutional or statutory ceiling on alimony awards payable by disabled veterans whose only realistic source of payment is their VA disability income.
  • How close a court can come to practically compelling use of disability benefits without expressly ordering their division or seizure.

VI. Conclusion: Key Takeaways

  • Core holding: In Nevada, courts may consider the existence and value of a divorcing veteran’s military disability benefits when determining alimony under NRS 125.150, but may not directly attach, assign, seize, or divide those benefits under NRS 125.165.
  • Alignment with national majority: Nevada joins the prevailing view that disability benefits, while protected from direct division, remain part of the veteran’s income and are appropriate to consider for spousal support.
  • Federal law distinguished: Mansell and Howell regulate the division of property (particularly retirement pay converted to disability), not the setting of alimony, and do not bar consideration of disability benefits in support calculations.
  • Alimony vs. property division clarified: NRS 125.150(1)(b)’s “compelling reason” standard for unequal community property division does not govern alimony awards; alimony remains governed by NRS 125.150(1)(a) and (9).
  • Deference to trial courts: Alimony awards will be upheld if supported by substantial evidence and if the court has meaningfully weighed the statutory factors, even when the resulting obligations are substantial relative to the payor’s income.
  • Open question preserved: The Court intentionally reserves for future decision whether NRS 125.165 invalidates an alimony award that can only be satisfied by drawing directly on disability benefits.

Oshiro v. Oshiro thus stands as a leading Nevada authority harmonizing state alimony law with federal protections for veterans’ disability benefits. It confirms that justice and equity in spousal support require a realistic appraisal of all income sources, while respecting statutory limits on what the law may compel from those benefits themselves.

Case Details

Year: 2025
Court: Supreme Court of Nevada

Comments