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A group of divorced servicemembers and retirees have filed a lawsuit challenging the constitutionality of the 1982 law that permits state courts to divide military retirement as marital property in divorce settlements.

A legal complaint, the first step in the lawsuit, was filed in the U.S. District Court for Eastern Virginia in Alexandria arguing that the Uniformed Services Former Spouses Protection Act (USFSPA) violates divorced members’ rights to due process and equal protection.

Jonathan L. Katz, one of two lawyers for the plaintiffs, said the lawsuit might be the first constitutional challenge of the USFSPA. It comes more than two decades after the law’s enactment, he said, because attempts to get Congress to address the law’s unfair provisions have failed.

“When legislative efforts don’t work, the only other option is to go to the courts,” said Katz, a constitutional lawyer in Silver Spring, Md.

Plaintiffs include 44 divorced retirees, 15 divorced active-duty members and a limited liability company, called ULSG (USFSPA Litigation Support Group), which retirees established to raise money for the lawsuit.

Defense Secretary Donald Rumsfeld is named as defendant because the Defense Department administers the USFSPA.

In a recent report to Congress, Defense officials reported that in 1999 there were 54,000 former spouses receiving a share of military retirement direct from the Defense Finance and Accounting Service under an automatic payment provision of the USFSPA.

Given that DFAS said it was processing an average of 18,000 court orders annually, the number of ex-spouses now drawing a share of retired pay through direct payments likely exceeds 100,000.

Ex-spouses from marriages that lasted fewer than 10 years of the servicemember’s time in uniform can’t qualify for automatic payments. But under the USFSPA, divorce courts still can order retirees to pay a portion of their annuities direct to ex-spouses as part of property settlements.

Katz said the law was enacted in a different era when fewer women worked and Congress felt it needed to protect financially vulnerable females. Today, he said, the number of women servicemembers being victimized by how state courts apply USFSPA is climbing. For example, the divorce decree of the lead plaintiff in the lawsuit, Tammy Adkins of Clovis, N.M., apportions to her ex-spouse disability benefits as well as her retired pay.

In effect, Katz said, the USFSPA “is saying to the military member, ‘No matter what your benefits are, if you get divorced then the state courts are free to do whatever they want with your retired pay.’”

A divorce lawyer who has handled hundreds of settlements involving former military spouses, but who asked not to be named here, suggested a constitutional challenge to USFSPA must be given long odds of success.

Federal law, he said, actually affords military retirees more protection than most employees during divorce. Active-duty members, for example, have rights under the Servicemembers’ Civil Relief Act to delay court proceedings if official duties prevent them from appearing.

Government lawyers have until early July to respond to the lawsuit. ULSG, meanwhile, has attracted more than 2,000 retired and active-duty supporters. They are expected to contribute at least $100 apiece toward legal costs. The group is at: www.ulsg.org

A support group for former military spouses is Ex-POSE (Ex-Partners of Servicemembers for Equality). Its site is: www.ex-pose.org

— Comments are welcomed. Write to Military Update, P.O. Box 231111, Centreville, VA 20120-1111, e-mail milupdate@aol.com or visit: www.militaryupdate.com

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