Military Divorce And How We Fail our Veterans


Written on August 12, 2014 – 10:37 pm | by ibkent

 

HEADLINE: Retired US Army Colonel Brigade Commander with 27 years of exemplary service and a 70% VA disability forced to live under bridge.

Sounds ludicrous, right? Can’t be real. You’re right – not yet, but with the confluence of archaic divorce laws here in Georgia and a little known bill federal law, it is a real possibility.

Politicians and civilians alike fall all over themselves to thank our troops and our veterans for their service. “Support the Troops,” “We Support the Veterans” rah-rah-rah. So, how is it that politicians have failed to take steps to at least modify a 30 year old law that probably has done more to bankrupt our veterans than any other. And it’s only getting worse as divorce rates in this country skyrocket, especially among older Americans.

We as a nation have been confronted of late with the awful realities facing many of our veterans. But let me tell you about one more reality that receives no attention but is devastating in its effects.

I am pretty sure that only a handful of Americans are even aware of the Uniformed Services Former Spouses Protection Act (USFSPA) (10USC1408) , a bill passed without much to-do — nor debate —  in 1982 as a rider to the Defense Appropriations Bill. And those who have heard of it are all probably active or retired military, which is a tiny number given that less than 1% of our nation serves in uniform. And of that 1%, I’d bet only those who’ve seen the horrors of this law up close and personal even know it exists. Soldiers who entered the military prior to the bill’s passage never even knew of its existence. And I’d bet that new recruits – commissioned and non-commissioned alike – still have no idea. The balance is likely composed of members of the legal profession for whom this law has become its own cottage industry over the years.

In a nutshell, this law says that a veteran’s retired pay may (emphasis added) be considered community property when dividing assets in a divorce proceeding.

The bill was well intentioned. Congress heard heartbreaking stories from divorced – mostly female – spouses, some of whom served along with their military spouses for decades, moving around the globe, sacrificing their own careers to raise children.

I am not unsympathetic to the plight of a military spouse who rarely has the opportunity to build a career, or to put in sufficient time at any one company to earn a pension or build a meaningful retirement fund. Further, I concur that it would be grossly unfair — and wrong — to allow any serviceman or veteran to just walk away from a spouse after 10, 20, 30 years of marriage, but this bill which treats a veteran’s retired pay as community property is also grossly unfair, misapplied – and egregiously abused.

So much has changed since the bill’s passage. When the bill was written, there were few male military spouses since few women had the opportunity for a military career, (the percentage of those serving who are women has nearly doubled since 1970)  but in the 40 years since the bill was passed great strides have been made for women in the military – and women who deploy with their spouses. According to a Rand Study, in 1970 only 35% of women over age 16 were employed or seeking employment outside the home. By 1980, that number increased to 50% and is now just under 60%. With the opportunities for online education, even up to a Doctorate degree, as well as online employment opportunities and the opportunity to consult from a home base, there are many more opportunities for women to receive an education and to be employed from anywhere they might be deployed with their husbands.  I think we can all agree that opportunities for women have improved significantly through the years.

The disabled vet’s disability pay, while untouchable according to the USFSPA is counted as income for purposes of alimony payments so it is essentially a target for distribution in a divorce.

There are two key restrictions set forth in the Bill: a) the spouse may be awarded no more than 50% of the veteran’s net retirement pay b) that retirement pay is to be split only if the couple was married at least 10 years while one party was in the military. Other than that, there are no guidelines. The law is even silent as to a formula for the proper allocation, yet the frequent interpretation in many jurisdictions is that the “spouse will receive 50%,” and it’s for life – even if the spouse remarries. So think about that – the law says the court MAY consider retired pay community property  but then leaves it up in the air as to the percentage.   Add to that alimony, and a military retiree must forfeit, in essence, his entire retirement pay.

Why is the breadwinner – the retiree, male or female — forced to give up such a significant portion of their well-earned retirement pay for the rest of their life, regardless of whether or not the spouse remarries? This places an undue burden on the veteran, who has already devoted his body and soul to a career that, in many cases, results in physical disabilities, to live a lifestyle far and apart from what he was promised when signing the contract to join the Armed Services, especially those who joined the military prior to the law’s passage.

As with most laws, no matter how airtight the authors of the legislation may try to make it, there is plenty of room for abuse. The biggest misconception of the bill – and the source of the most angst — is that it does not require the division in the event of a divorce, rather it simply allows it. There is a huge difference between the words “may” and “must” and I would guess that even most divorce lawyers and judges do not understand this nuance– or don’t care. Even in Muscogee County some retirees are required to share the retired pay 50% and for others the number is lower.  How can a federal law be open to such different interpretations by state or even by county within a given state?

Divorce is ugly. It gets even uglier when the military veteran is forced to turn over up to 50% of his retired pay to the spouse, regardless of the spouse’s behavior during the marriage, simply because the law is often misapplied. Keep in mind, this is retirement that the veteran has earned and for the infantry soldier this means road marches in the bitter cold and sweltering heat, dozens if not hundreds of parachute jumps, dangerous deployments, nights spent in tents or on the ground.   Why should the spouse receive the same retirement benefit as the soldier especially since there is significant precedent that the retirement is “reduced current pay” for continued service in the armed forces at a reduced level.

 

Background:

On June 26, 1981, the Supreme Court of the United States overruled a lower court ruling in the case of McCarty v. McCarty. The lower court had allowed for a military retiree’s retirement pay to be divisible in a divorce proceeding. In his SCOTUS majority opinion (6-3), Justice Harry A. Blackman ruled in favor of the petitioner that “the military retirement system confers no entitlement to retirement pay upon the retired member’s spouse, and does not embody even limited ‘community property’ concept. In fact, retired pay is not a vested property right and “determining otherwise poses significant threats to the special nature of this ‘entitlement’ and its function in national defense.

  1. The military retirement pay is a statutory personal entitlement of the retiree.
  2. The application of community property principles not only threatens harm to federal interests, but also has the potential to frustrate the congressional objective of providing for the retired service member. It is important to remember that the military retirement system serves as an inducement for enlistment and reenlistment.
  3. “… it is clear that Congress intended that military retirement pay ‘actually reach the beneficiary.’ (Hisquierdo, 439US @584). Retirement pay cannot be attached to satisy a property settlement incident to the dissolution of a marriage.”

 

Boom, there you have it.   Seems pretty straightforward, right? Not so fast.

 

Despite the ruling on behalf of Col. McCarty, the Court opened the door for Congressional action to provide for “equitable distribution” of this pay. The USFSPA was enacted without debate as an almost unnoticed component of a larger Defense Appropriations bill. But here is the great rub:

The bill (found at 10 USC §§1408 et seq)effective date February 1, 1983) was backdated and retroactive to June 25, 1981, the day before the McCarty ruling, essentially circumventing the Supreme Court, and dismissive of the Court’s concerns regarding military retention, enlistment, and the economic needs of older veterans as noted in the SCOTUS holding! The bill’s proponents claim the law simply “recognizes that both spouses contribute equally to the service member’s ability to earn a wage and receive a pension.”

The fact remains it’s a bill that was written in a time when opportunities for military spouses to pursue an education and become independent were nominal. It’s no surprise that nearly every veterans’ organization has at one time or another requested that Congress review this outdated law. The American Legion has repeatedly called for its repeal.

Here are but a few reasons why this law is not only patently unfair, but counter to legal precedent:

RULE OF PROPERTY

Military retirees have no property rights to retirement pay, so how is it that a former spouse gains a property asset right? There is sufficient legal precedent [Buchanan v. Alexander (45 US 20 1846)] to support the claim that a court – especially a state court – could not tell a federal disbursing office what to do with money Congress had appropriated. [emphasis added] Wouldn’t that defeat the purpose of congressional appropriations? And how can it be considered “property” if it can be taken away?

According to the 1982 law, the Court can require DFAS to send money to the spouse without it first going to the military member.  Subsequent to the Buchanan ruling noted above, the Court noted in 1882 [United States v. Tyler (105 US 244, 1882] that such pay is “compensation… which continued at a reduced pay.” So if it is current compensation vs. property (as per United States v. Tyler (105 US 244, 1882) its division becomes alimony for life!

MILITARY RETIRED PAY IS NOT A PENSION

For starters, the word “pension” never even appears in the USFSPA. It is referred to as retired pay and intended to be a continuation of active pay on a reduced basis. What civilian pension has that same qualification? It is not, like civilian pensions, deferred compensation. You either qualify for retirement by honorably serving a minimum of 20 years or you do not. There is no “vesting” in the military retirement system. There are no special retirement accounts, no matching funds provision, and a soldier who leaves the service even one day short of 20 years receives nothing. I don’t know of any other form of retirement pay that requires that the recipient of that pay be prepared to be recalled back to employment under penalty of law.

The Iraq and Afghanistan Wars stretched the military’s resources and call-ups included nearly 6,000 members of the Army’s Individual Ready Reserve (IRR) – soldiers who thought they were out of the Army and receiving “retainer pay.” Over 20,000 were called up earlier for Operation Desert Storm.

In other words, Retirees can be recalled at any time – up to age 60 for Generals, age 62 for Warrant Officers and age 60 for all others. Are spouses involuntarily recalled?

And if it is considered “property,” why is it taxed as income?

MILITARY CODE OF JUSTICE

Military retirees are subject to Military Code of Justice – even when retired. Hmmm, why is that? Because the retiree is on reserve status. And because he is on this “reserve status,” his share can be taken away for any Code violations.

If a retiree is jailed, for instance, the pay stops. If the spouse is jailed, the pay continues. If a retiree, for whatever reason, changes his citizenship, he loses the retirement pay. Yet, there are millions of dollars currently being paid to foreign nationals as part of this law who’ve even returned to their home countries, and still receive this compensation! In a perfect example of the absurdity of this law, a Seabee met her spouse while serving together in the Navy. The spouse was booted from the Navy for violating the MCOJ. Fast forward and the couple divorces. The same guy who was less than honorably discharged now receives 50% of the spouse’s retired pay. How on earth is this fair, and how could this have been what the law intended? So, how can it be treated as “compensation” (and therefore divisible) when it can be taken away from the veteran? Are former military spouses subject to the MCOJ?

 EQUITABILITY

The law was enacted to compensate spouses for their “equal contribution.” Do spouses make a contribution? Of course they do, but how can one say with a straight face that the spouse of an airborne infantry soldier makes an “equal contribution.” Or the spouse of a Navy sailor who spends their time on a ship in cramped quarters for weeks or months at a time? Did the spouse jump out of aircraft in the middle of the night? Did the spouse get shot at in combat? Did the spouse go on 15 mile ruck marches in the dead of winter and the heat of summer? To call the contributions “equal” is intellectually dishonest.

Why are there no standards be met for a spouse to quality for the distribution other than be in a marriage with the veteran while the vet was still active duty for at least 10 years. I mentioned earlier that this was to compensate for a spouse who, through frequent PCSs, (Permanent Change of Stations) were never able to build a career and ultimately a retirement income. Or to assist a spouse with limited education or job skills.

Why should the spouse not have to prove they’ve searched for employment or worked to improve job skills – or — that the veteran had requested that the spouse not work outside the home, perhaps to raise the children or maybe a child with special needs to be eligible for these benefits? But what happens when the spouse refuses to work, is abusive, a drunk, and ultimately not supportive of the spouse’s military career? Just as we know that not all soldiers are heroes, certainly not all spouses are either.

In those states that still allow alimony – such as Georgia – alimony is tacked on – virtually depriving the soldier of his entire retirement! So how is it that the lifestyle of the spouse remains unchanged – while that of the retiree suffers. Certainly, this is not what was envisioned by this law.

Many military men and women stay married for many reasons a) it’s quite costly to divorce, especially if the veteran is required to turn over half of his or her well-earned retirement pay or b) perhaps the soldier is a parent and concerned that status of being a member of a highly deployable unit could jeopardize custody, or worse, would have the child be raised by another person. So in essence a soldier is further punished for wanting to be a good parent.

As noted earlier, The law does not say that the veteran must give over a specific percentage. It does make clear however, that local jurisdictions MAY consider the military pay when dividing marital assets. Some lawyers will tell you there is a formula, which takes into account the number of years the couple was married, and the number of years the service member served. But, at least here in Muscogee County, that formula is rarely used.

I’ve only raised a few of the problem spots in this misapplied law, but here are some real things that could be done with just a few amendments:

Case by Case   This should not be an all or nothing, across the board acceptable law. Even if a spouse has a career, makes more than the veteran– or vice versa – the law still allows the non-military spouse to collect half of the military spouse’s pay. This should never happen. Ever. These issues should be dealt on a case by case basis. If the military spouse makes less money than the non military spouse, if the non military spouse has a career, an income, etc. he/she should not receive a dime of the military spouse’s retirement pay.

Remarriage: Alimony ends after remarriage. Why does the retirement allocation not end? If it is truly distributable as part of the marital assets why is it not treated the same way as alimony? The ex-spouse’s share terminates only upon death of either party (and it is not transferrable). Cong. Pat Schroeder, one of the early architects of the bill, even recommended that this payment end upon the remarriage of the spouse. Why this did not wind up in the final bill is anybody’s guess. There are veterans whose lives have been literally upended by this law. One veteran, after retiring as a full Colonel, divorced his wife of 25 years. It was a no-fault divorce. She worked and was granted the 50% “required” by law. She remarried and still has a well-paying professional position. The veteran’s military contract was terminated, and he was forced to subsist on unemployment and his 50% share of the retirement while the spouse continues her comfortable lifestyle. Sounds more like a punishment than “equitable distribution.”

[Note:   Retirement division concludes upon remarriage for the Foreign Service, the CIA, Social Security Benefits … so the military member must pay for life, but the Government? Nope, they stop paying upon remarriage.]

Employment History: If the purpose of the bill is to compensate a spouse for foregoing long term career possibilities, shouldn’t there be a requirement for the spouse to show she had at least searched for employment? That she had contributed to the household? Otherwise, where is the incentive for a spouse to ever work? In many jurisdictions, including Muscogee County, GA – home to Ft. Benning – a judge will require alimony in addition to the 50% of the retirement simply because the veteran provided a good lifestyle for the spouse. There’s something wrong with that kind of thinking.

Support for Career: Many – probably most – military spouses support the soldier’s career. And that spouse is deserving of a piece of the veterans’s retirement. Now, what about the spouse who refuses a PCS assignment so that the soldier can be either promotable or, in one real instance, serve out his final 3 years in a position he enjoys?

Behavior during the Marriage: Just as behavior during the marriage is a component during a civilian divorce, how is it that this criterion is not evaluated – at all – before turning over half of the veteran’s future income? Not all soldiers are heroes, and lord knows, not all spouses are either. A spouse could be a drunk – or abusive – could even be acting contrary to the spouse’s best interest, but that 50% will still roll her way.

A statute of limitations: Veterans who retire from the military years after the divorce are also forced to turn over nearly half of their retirement to the former spouse. As it stands, a spouse can show up years later, demanding a percentage of the retired spouse’s current pay grade. So, if they divorced while the soldier was a Staff Sergeant (E-6), s/he could demand a portion of the retired Sergeant Major’s E-9 pay. Fair? I think not.

USFSPA REFORM: The USFSPA has been modified 23 TIMES since its initial enactment 30 years ago. 18 of those 23 reforms – that’s nearly 80% -have solely favored the former spouse. Four favored both the veteran and the spouse and only ONE (1) – that’s 1/23 has benefited solely the retiree. Do you really believe our Government “supports the troops?”

Keep in mind – there would be no tax dollars at risk – these funds are already allocated. It would be solely a redistribution so that the primary beneficiary of retired military pay would be the one to whom it was intended – the Veteran.

It’s time we put up or shut up and take the steps necessary to protect our veterans in their later years.

 

 

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  1. One Response to “Military Divorce And How We Fail our Veterans”

  2.   By Col Bob B on Sep 16, 2014 | Reply

    I agree 100%. It is crazy to me that states that do not allow alimony have judges who are quick to allow this travesty. The AIR FORCE TIMES had a series of articles on how this impacts our vets, one showing a retired Lt Col who is living in his van in DC while he pays child support and his 50% alimony for life to an ex-wife. My alcoholic ex-wife divorced me when she got tired of doing the military moves every three years. She started getting her checks from my retirement pay at DFAS even as she married her boyfriend she had been seeing while we were married. “We support our troops”, indeed!?!

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