Military Update: Divorcees shift battle over military retirement pay from court to Congress
July 7, 2007
If the 25-year-old law that allows state courts to divide military retired pay as marital property in divorce settlements needs reform, as many servicemembers and retirees contend, it won’t occur through a court challenge.
The Supreme Court made that clear again last month when it denied the petition of 58 divorced retirees to review their arguments on appeal from a loss at the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.
The focus for advocates of divorced retirees now shifts back to Congress, which has been arid soil for seeds of change regarding the Uniformed Services Former Spouses Protection Act (USFSPA).
Yet some retirees reportedly are determined to find a senator willing to try to attach ex-spouse law amendments to the fiscal 2008 defense authorization bill when it comes up for floor debate next week.
Prospects for legislative relief from the perceived injustices of the USFSPA nevertheless are viewed as slim, given Congress’ failure to act in the past. Just last year, the Senate included noncontroversial technical amendments to the USFSPA to its 2007 defense bill, all of them changes sought by the Department of Defense.
Immediately, members of the House and Senate were bombarded by e-mails and phone calls, half from divorced members urging more substantive changes, and half former spouses pleading that their legislative gains from the past not be rolled back.
“It was, ‘Why aren’t you including this?’ ‘Why aren’t you including that?’ and ‘If you’re going to address it, you’ve got to take care of me,’ ” remembered a Senate committee staff member.
“The military member is upset about having his retirement divided differently than he would otherwise have it,” he said.
“The former spouses are very concerned about anything that would chip away at what they are getting because they feel they earned it. And current spouses get upset, legitimately, I think, that some courts are dividing their spouses’ retired pay even though they are still on active duty.”
A House-Senate conference committee, shaping a final 2007 defense bill, decided to drop the modest USFSPA changes.
The DOD released a comprehensive review of the USFSPA in 2001 and continues to stand behind its recommendations. (The report is available at: www.defenselink.mil/prhome/docs/finalrpt.pdf.)
The more substantive changes for divorced retirees, however, would impact only future divorce settlements. DOD urges that they not apply to settled cases.
Perhaps the biggest one would ensure that a former spouse’s share of retired pay be based on the servicemember’s rank and years of service at the time of the divorce, blocking any “windfall” boost for ex-spouses from promotions earned and years served by the member after the divorce.
Defense officials have gone beyond the 2001 report with some recent recommendations to Congress.
One would amend the USFSPA to stop state divorce courts from, in effect, ordering members with 20 or more years of service to divide their retirement pay with their ex-spouses before they actually retire.
Such rulings, Defense officials argue, can impact readiness by forcing experienced personnel to cut short their careers.
Retiree advocates and Defense officials who press for such changes get sympathetic nods from lawmakers.
But their sympathy hasn’t overcome anxiety on Capitol Hill over facing a new tsunami of bitter feelings that inevitably arise during consideration of any change to the USFSPA.
“This is just not an area where there is a clear consensus that there is a right answer [for lawmakers] to go out and take the heat that goes with adopting one position or another,” said a Senate staff member familiar with proposed reforms to the law.
Defense officials this year urged 11 changes to USFSPA, some to benefit former spouses and some to help retirees in future divorce cases.
The entire package was ignored by the House and Senate armed services committees in marking up their versions of the 2008 defense bill. Meanwhile, a group of divorced retirees saw a disappointing end to their three-year-old lawsuit, Adkins et al. v. Gates, which challenged the constitutionality of the USFSPA from several angles.
The retirees’ lead attorney, David J. Bederman of Atlanta, argued that the USFSPA is unconstitutional because: It was applied retroactively to divorced members who entered service before its enactment, violating due process protection; it violates the Equal Protection Clause by discriminating against military retirees in several ways, such as in comparison to treatment of some other divorced federal retirees; its mechanism for garnisheeing retired pay has insufficient procedural safeguards, considering the significant property interest at stake; the law is not written so that all state courts apply it uniformly, which allows an unconstitutional disparity of treatment.
A federal district court rejected all of these arguments in October 2005, and that lower court’s decision was upheld by the appeals court last fall. The Supreme Court declined to review the case June 18.
When the lawsuit began in 2004, legal expenses were expected to exceed $200,000 so plaintiffs sought financial backing from other retirees through a limited-liability corporation, the USFSPA Litigation Support Group (ULSG). ULSG did not share the final cost of their lawsuit with us. But as they explain on their Web site, their lawyers now advise that the case is exhausted and that filing a petition for a rehearing would be futile.
But if the USFSPA is to be changed, it seems, only Congress has the means, if not yet the will, to do it.
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