Military Update: DOD says it won’t back new limit on ex-spouses retirement shares
Stars and Stripes May 1, 2004
The Department of Defense says it does not support imposing new limits on the number of years that former spouses can receive court-awarded shares of military retirement.
Such limits are at the heart of the Uniformed Services Divorce Equity bill (HR 1111), introduced by Rep. Cass Ballenger, R-N.C., to better protect military retirees when courts divide their annuities as property in divorce.
DOD also opposes other bill provisions, including one that would dictate the size of ex-spouse retirement shares in future divorces and another to set a two-year window for ex-spouses to seek a share of military retirement after their divorce or forever forfeit that right.
The department does support two HR 1111 provisions, said William J. Haynes II, DOD general counsel, in an April 8 letter to the House Armed Services Committee.
One would end what retirees call “windfall” compensation to ex-spouses when a former spouse’s court-ordered share of retirement is applied to gains in retired pay from promotions earned and extra years served since their divorce. The second provision would block state courts from ordering servicemembers to begin paying ex-spouses amounts equal to their share of retirement before members actually retire.
Both provisions would apply only to divorces that become final after the bill is enacted.
The limited DOD endorsement doesn’t mollify retired Navy Capt. Frank Ault, executive director of the 600-member American Retirees Association. ARA has worked for almost two decades to repeal or overhaul the 1982 Uniformed Services Former Spouses Protection Act, which allows state courts to divide military retirement as property in divorce settlements.
DOD’s stand on HR 1111 attacks its “central theme,” Ault said, which is to match the length of time current and future retirees are required to share their retired pay to the duration of the marriage while members were in service. Only ex-spouses from marriages that lasted 20 military years would qualify for a lifetime share. If a marriage lasted 10 military years, the obligation to share retirement would last 10 years. For future divorces, all payments would end upon the ex-spouses’ remarriage. Payments to current ex-spouses would come under the time-matching rule but all ex-spouses would be guaranteed at least 24 more months of payments after the bill is enacted.
In 1990, Ault said, a senior DOD official testified in favor of ending the division of military retirement when a former spouse remarries. The department now opposes the remarriage provision. That same official 14 years ago said courts shouldn’t view military retirement the same as civilian pensions. Yet Haynes wrote April 8, Ault noted, that, “Military retirement is similar enough to other types of retirement programs that it does not merit being treated differently than virtually all other retirement benefits.”
“It appears,” said Ault, “the Department of Defense favors the welfare of ex-spouses [over] military members.”
Doris Mozley, an advocate for former spouses, also was disappointed with DOD’s stand on HR 1111, but for supporting even two of the provisions.
“If the wife has to wait another 10 years for her share of the pension,” Mozley said, “that means he is using her capital for 10 years without pay to her.” The same ex-spouse would be more deeply wronged, she said, if her years of waiting had no positive impact on her share of retirement.
Introduced a year ago, HR 1111 has 21 co-sponsors, a number Ballenger must view as “a major embarrassment,” Mozley said. The Richmond, Va., lawyer assists former spouses with the help of a small group she calls the Committee for Equality and Justice for Military Wives.
Ault said the General Counsel letter is a setback for meaningful USFSPA reform. One trend that, in time, will favor major changes is the rising number of “female victims” among military retirees, he said.
“A law built to protect women is now hurting women,” Ault said.
SBP discharge petition
HR 548 doesn’t lack for co-sponsors. It would end the sharp drop in military Survivor Benefit Program payments that occurs when surviving spouses turn 62. Benefits fall from 55 percent of the retiree’s covered annuity down to as low as 35 percent.
Introduced by Rep. Jeff Miller, R-Fla., the bill has 328 co-sponsors, almost half of them Republicans. The Bush administration, like past Democratic administrations, opposes such bills as too costly.
This election year, with service associations making SBP improvements a priority and Democrats anxious to win the military vote, they locked arms to force Republicans to stand with military spouses or with the White House. Democrats — led by Rep. Chet Edwards of Texas and Minority Leader Nancy Pelosi of California — have filed a discharge petition for HR 548 to try to force it onto to the House floor for a vote. They are using a tactic that forced major concessions from House Republican leaders and the White House last year on concurrent receipt.
In just two days late last month, 176 Democrats but no Republicans had signed the petition. A total of 218 signatures were needed. Pressure on Republican co-sponsors of the bill was rising.
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