Fifty-eight current and retired service members have reached the end of their long legal battle to overturn the Uniformed Services Former Spouses’ Protection Act after the Supreme Court refused to hear the case.
The high court’s decision effectively upholds a lower court ruling to dismiss the lawsuit by the service members and retirees who had sought to put military pensions off-limits for division in divorce cases. The USFSPA allows state courts to treat military pensions as common marital property in divorce cases and award a portion of it to the spouse.
The lawsuit named the secretary of defense as the defendant.
A U.S. District Court in Alexandria, Va., issued a ruling in 2004 to dismiss the case, and that decision was upheld in September by the 4th U.S. Circuit Court of Appeals in Richmond, Va.
“We believe it’s unfortunate what the court has decided with regard to this latest initiative to address the inequities in this onerous law,” said Joe Barnes, national executive secretary of the Fleet Reserve Association.
Supporters of reforming the law will continue their effort, Barnes said.
“Our principal focus has been trying to address this legislatively, and we continue to address the need for reform to members of Congress and staff,” Barnes said, adding that FRA has never advocated that spouses do not deserve benefits.
“But the way the law was written, it is subject to broad interpretation by state courts,” he said.
The USFSPA, enacted in 1982, does not give spouses a right to a specific amount of money in a divorce settlement. The decision whether to award part of retirement pay, and the amount, is up to state courts, and the amounts vary widely. Most pensions, including those of police officers and federal employees, and other occupations, are subject to division in divorce cases.
Barnes said a number of changes to the law have been made in the favor of former spouses, and service members need some additional protections. For example, he said, if a former spouse is awarded a percentage of a service member’s retirement pay, that amount should be based on the member’s paygrade at the time of divorce, not pay at the time of retirement.
She had raised her daughter for six years following the divorce, handled the shuttling to soccer practice and cheerleading, made sure schoolwork was done. Hardly a day went by when the two weren’t together. Then Lt. Eva Crouch was mobilized with the Kentucky National Guard, and Sara went to stay with Dad.
A year and a half later, her assignment up, Crouch pulled into her driveway with one thing in mind — bringing home the little girl who shared her smile and blue eyes. She dialed her ex and said she’d be there the next day to pick Sara up, but his response sent her reeling.
"Not without a court order you won’t."
Within a month, a judge would decide that Sara should stay with her dad. It was, he said, in "the best interests of the child."
What happened? Crouch was the legal residential caretaker; this was only supposed to be temporary. What had changed? She wasn’t a drug addict, or an alcoholic, or an abusive mother.
Her only misstep, it seems, was answering the call to serve her country.
A Georgia military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection From Georgia Divorce Proceedings
There are laws set up to protect active duty military members against being held in "default" from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Georgia court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Georgia court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
The following article is by Edwin C. Schilling III, Esq.
From 1987 until November 1989, I was the Assistant Staff Judge Advocate of the Air Force Accounting and Finance Center in Denver, Colorado. One of my responsibilities was acting as the approval/denial authority for over 6,000 cases under the Uniformed Services Former Spouses’ Protection Act (FSPA). (See 10 U.S.C. Section 1408.) In addition to possessing a working knowledge of the Act and regulation, the practitioner must assimilate a surprising amount of information about the military retired pay system to thoroughly protect a client’s rights. When I saw how few attorneys understood this legislation, I decided to retire and open a practice as a consultant.
In the course of dealing with members, former spouses and their attorneys, questions were frequently raised as to what military benefits, if any, the former spouse might be entitled to. The USFSPA, in addition to authorizing direct payment of a portion of a military retirees pay to the former spouse, extended some base privileges to certain former spouses. The extent of the privileges is found in the USFSPA and subsequent amendments. The provisions on continued benefits are found in 10 U.S.C. §§1062 and 1072.
More and more, continued health benefits becomes an important if not driving factor, especially when the former spouse has a serious pre-existing condition. This article now summarizes the privileges granted and the criteria for entitlement to them, and gives some practice pointers. It is current as of June 18, 1996. Throughout the article, "divorce" refers to dissolution, and annulment actions.
Divorce in the nation’s military was no higher after four years of war than it was in peacetime a decade earlier, despite the stress of long and repeated tours of duty.
A yearlong study by Rand Corp. says divorces rose from 2.5 percent of military marriages in 2001 to 3 percent in 2005. But that is still short of a previous Pentagon theory that marriage breakups had been soaring due to the strain of fighting the campaigns in Iraq and Afghanistan, lead researcher Benjamin Karney said Thursday.
He cautioned that the review of service records could not foresee whether more divorces will occur in years after troops leave the service.
And he also said the yearlong study on "Families Under Stress" did not look at other possible consequences, either current or future, such as increases in alcoholism or the toll on orphaned or emotionally stressed children of troops.
Aides say lawmakers are reluctant to propose revisions to legislation
The Pentagon is asking Congress to be daring by making several changes in the Uniformed Services Former Spouses’ Protection Act, a law that has long been considered a political hot potato.
David S.C. Chu, the undersecretary of defense for personnel and readiness, said the Pentagon wants a “balanced package of proposed improvements for both military members and former spouses.”
This would include prohibiting a court from ordering service members to begin paying a portion of their future retired pay before they have actually retired and setting a formula for dividing retired pay based upon the rank and years of service at the time of divorce — provisions generally seen as helping service members more than former spouses.
For former spouses, the Pentagon is asking that the Defense Finance and Accounting Service be authorized to make direct payments for any court-ordered division. Current law allows direct payments only when a couple was married for at least 10 years.
Also in the plan is a proposal that would allow a retiree to divide survivor benefits between a current and former spouse. Currently, the benefits must go to only one person.