|
Military Matters
 By Don Neill |
Military retirement rule
gives former spouses more
than they deserveThe war in Iraq is winding down and the veterans have begun returning home. Some of them, unfortunately, will have to deal with the Uniformed Services Former Spouse Protection Act, the law governing military divorces -- the worst law the United States has ever inflicted on military personnel.
This law, in place for more than two decades, was Congress' greatest effort at "social engineering." It failed miserably.
The USFSPA does not and never will affect the federal budget or your personal taxes. The Department of Defense refuses to take a position on the act, and Congress has been mute for the last five sessions.
Last year I wrote letters to Congress, Sen. Daniel Inouye, the secretary of the Navy and President Bush addressing the unfairness of USFSPA. Instead of the 15 minutes I requested, Rep. Neil Abercrombie gave me an hour and signed on as a co-sponsor for HR 1983, an effort to correct some of the conditions of USFSPA. The silence from Senator Inouye, the Navy secretary and the President's Executive Office was deafening.
No one plans on divorce before marriage or considers the perils of military divorce. It certainly was not part of the enlistment briefing.
The 1982 USFSPA law authorized state courts to divide the military retirement/retainer pay with a former spouse during divorce proceedings. This seems fair on the surface, to protect a former spouse and not to leave her (or him) destitute.
A year earlier, however, the U.S. Supreme Court in the McCarty vs. McCarty case ruled that "the military retirement system confers no entitlement to retired pay upon the retired member's spouse and does not embody even a limited community property concept." The court further stated that "the application of community property principles to military retired pay threatens grave harm to clear and substantial Federal interests."
Incredibly, Congress backdated the USFSPA law to the day before the Supreme Court decision in the McCarty case. A growing number of military retirees believe this is in direct violation of Article 1, Sections 9 and 10 of the U.S. Constitution. Also, this is not a military law but a civilian law, P.L. 97-252, Title 10, USC, Section 1408.
For the last 20 years, active and retired members of the military, including the National Guard and Reserves, have been treated like criminals by divorce courts in all 50 states. Judges routinely award former spouses as much as half of the service member's retirement pay, and in some cases more than 100 percent of their retirement/retainer pay. These payments continue until one or the other dies, regardless of marital status.
Several things went wrong when the act was modified. There is no minimum marriage period; "no-fault" divorce states divide property in an irrelevant manner; there is no statute of limitations; and the law affects only military retirees and not other government employees. Most appalling, the act does not stop upon remarriage. There are several cases of people marrying and divorcing numerous military members, then applying for -- and receiving -- as much as half of the retirement pay from each of them.
Here are some examples, from an About.com survey on the issue:
>> A Marine Corps staff sergeant, returning to his duty station in Twenty-Nine Palms after serving in combat during Operation Desert Storm, planned to retire with 20 years of honorable military service. Upon his arrival home, his wife of 19 years was found cohabiting with another man. In May 1991, the spouse abandoned the service member and their three children and filed for no-fault divorce in California. The divorce was final in January 1992. The military member was ordered to give 50 percent of the property of the marriage to the former spouse, and 47.5 percent of his military retirement pay.In my own case, my former wife gets 50 percent of my retirement pay (roughly $20,000) plus full Social Security, about $10,000, and shares $70,000 of her new husband's military retired pay and his full Social Security of about $10,000. In real dollars, her retirement pay is $110,000 to my $30,000.>> An Air Force master sergeant served 20 years in the military, including two tours in Vietnam. He and his wife were married the final 16 years of his military service. While stationed in Alaska and entering his last year before retirement, he was sued for divorce by his wife (who had found a boyfriend) and evicted him from his home. The court awarded the ex-spouse 40 percent of the service member's retirement pay as property, and an additional 27 percent as child support. After taxes, the retired service member receives approximately $130 monthly. The former spouse was employed at $34,000 per year; her live-in boyfriend was employed at $26,000 per year.
>> A Navy chief petty officer (E-7), a Vietnam veteran, was divorced in 1978 after 11 years of marriage. At the time of divorce, real property was awarded along with child support. In 1991, the military member retired as a master chief petty officer with 30 years of service. At that time, the former spouse returned to court for division of retirement pay and was awarded 28 percent payable at the E-9 rate. At the time of this award, the former spouse was married to her fourth husband.
I am one of the state coordinators initiating a USFSPA class-action lawsuit. All retired and active-duty service members should be interested in our efforts to declare the USFSPA unconstitutional. In so doing, rightly earned retirement pay will not be awarded to ex-spouses or, worse yet, third parties of those ex-spouses who had nothing to do with a military career.
We'll go all the way to the U.S. Supreme Court if necessary. Please visit our Web site at Usfspa-Lawsuit.Info for background information, as well as interesting comments from potential litigants.
An online petition with more than 9,000 signatures of both male and female victims of the act is at www.petitiononline.com/USFSPA/petition.html
Don Neill is a retired naval aviator with combat experience in Korea and Vietnam. He lives in Kailua.