How fair is fair? Good Intentions Gone Bad (Part II).
Dateline: 06/07/99
So, what went wrong? Several things: First, the USFPA wasn't passed in its original form. The all-important, minimum marriage time of 10 years, and several other important safeguards were excluded, modified, or rendered ineffective over the next several years.
Here's what I find unfair about the act:
- Length of Marriage. Most servicemembers believe one must be married for at least 10 years before their spouse can receive a portion of their military retirement pay after divorce. This is not true. Under the provisions of the Act, a divorce court can award a division of retired pay even after one day of marriage. The "10 year rule" only applies to the Defense Accounting Office making direct payments to the ex-spouse. A military member must serve honorably every day for a minimum of 20 years to qualify for retirement pay. A military spouse can qualify after only one day.
- Divorce-Court Fairness. The Act assumes that divorce court judges will divide retired pay in a fair and equitable manner. Remember, one of the reasons for the act was to reward ex-spouses who had sacrificed to support the military member's career. Unfortunately, along came "No-Fault" divorce courts, which are used now in almost every state. The "No-Fault" courts divide property without regard to the specific circumstances of the marriage or wrongdoing at the time of divorce. There are thousands of servicemembers forced to give up 1/2 of their retired pay to ex-spouses who actually did all they could to damage the servicemember's career. These facts are simply irrelevant to "No-Fault" divorce courts.
- Remarriage. Under the Act, payment of devised retirement pay continues for the life of the service member, or until the death of the ex-spouse. It does not stop upon remarriage. There are several cases of people marrying and divorcing numerous military members, then applying for -- and receiving -- retirement pay from each of them.
- Spouse Employability. As I said in Part I, the Act was written during a time when military spouses were discouraged from having their own career. This is no longer the case. All of the services have regulations severely prohibiting the discouragement of spouse careers, and there are now several official programs to assist military spouses with employment, and even give them preference over other civilians for government jobs.
- Recall. A military retiree is subject to recall to active duty and is -- at all times --subject to the provisions of the Uniform Code of Military Justice, as a condition to receiving retirement pay. The ex-spouse is subject to neither of these.
- Statue of Limitations. There is no statute of limitations, limiting how long ex-spouses have before they can go back to divorce court and demand a portion of the service member's retired pay. Several times, military retirees have found themselves drug back into family court by ex-spouses they haven't seen or heard from in dozens of years, then forced to relinquish a portion of their retired pay. Many times these ex-spouses have been remarried several times!
- Fairness. The USFSPA affects the military retiree only. There is no comparable law for policemen, firemen, congress members, lawyers, doctors, etc.
- Measure of Service. Even in those cases where a marriage does last 20 years (the entire career), it is blatantly unfair to the veteran to state that 20 years of household service is "50-50" equal to 20 years of arduous military service. The service member has been subject to military orders, discipline, dismal sleeping/eating conditions, enemy fire, chemicals, drugs, and a dozen other hardships that only a military member is asked (nay, ordered) to endure.
Military veterans and retirees have no wish to see ex-spouses turned out penniless into the streets after a long marriage. However, the USFSPA has shown that it is not the solution. The proper solution would be for divorce courts to award appropriate amounts of alimony and child support, in those cases where it is specifically warranted. Not blatant theft of a military retiree's retainer pay.
This year, Congress will consider H.R. 72. While this resolution falls far short of needed changes to the USFSPA, it's a step in the right direction. Among other minor changes, H.R. 72 stops payment of devised retired pay upon remarriage of the ex-spouse, and enforces a three-year statue of limitations on the time an ex-spouse may take the military member back to court to request a division of retirement pay. I encourage you to write, call, or email your congressman in support of H.R. 72, and in support of future initiatives to restore fairness to the military divorce system.
Want to learn more about the USFSPA and how it negatively affects the military career force? Visit any of the sites listed in my USFSPA Net links.
