thedrifter
01-03-07, 08:43 AM
January 08, 2007
U.S. Military (Ret.)
Former spouse protection act elicits strong opinions
By Alex Keenan
Special to the Times
In the 24 years since enactment of the Uniformed Services Former Spouse Protection Act, much confusion has swirled around the issue of entitlements and benefits due to the divorced spouses of retired service members.
Passions run high on this issue. Most veterans’ groups, as well as some members of Congress, feel this law should be repealed. Spouses, naturally, feel differently. I regularly get mail on this issue from both sides. Therefore, I thought it might be useful to explain a bit about how we got to where we are today.
On June 26, 1981, the Supreme Court held in McCarty vs. McCarty that federal law precluded a California court from dividing military nondisability retirement pay under state community property laws.
The Supreme Court found that dividing a military pension in state court threatened grave harm to “clear and substantial” federal interests, such as providing for retired service members in their old age and encouraging enlistment and re-enlistment.
The court viewed military pensions as different from other pension systems because the retiree is subject to recall to active duty at any time, continues to be subject to the Uniform Code of Military Justice and is restricted in post-service activities. Military retirement pay historically had been considered not a “pension,” but reduced pay for reduced services.
The McCarty decision also noted that dividing military pensions made it less likely that the retired service member would choose to reduce his retirement pay still further by purchasing an annuity for the surviving spouse and children.
Bottom line: The Supreme Court reversed the California superior court decision but invited Congress to change the law if it so desired. And it did. The Uniformed Services Former Spouse Protection Act was enacted Sept. 8, 1982, retroactive to June 25, 1981, one day prior to the McCarty decision.
Congress rejected the Supreme Court’s ruling in McCarty regarding the effects of dividing retirement pay on military retention and enlistment, and the economic needs of older veterans.
Ever since, the USFSPA has applied to the Army, Navy, Air Force, Marine Corps and Coast Guard, and the commissioned corps of the National Oceanic and Atmospheric Administration and Public Health Service.
Since the USFSPA is a federal statute, its provisions and the regulations that stem from it pre-empt or supersede state laws. The law, with limitations, allows state courts to treat a military pension either as property solely of the service member or as property of the member and his spouse in accordance with the law of the jurisdiction for pay periods beginning after June 25, 1981.
Congress was strongly opposed by the executive branch, the Civil Service Commission, the Government Accountability Office (then the General Accounting Office) and most military and veterans’ organizations.
Soon-to-be retirees saw it as a slap and claimed that military retirement pay is “the personal entitlement of the retiree.”
Many military spouses were, and have remained, adamant that they earn a portion of service members’ retirement pay during years of moving, starting new jobs and filling the role of both mom and dad when the military spouse is deployed.
Attempts have been made over the past 24 years to repeal or overhaul the law. In 1998, Congress asked the Pentagon to review the issues and make recommendations for change. The Pentagon offered a history of the issues involved, but essentially stayed neutral on the merits of the law and balanced recommended changes benefiting service members with similar changes to benefit former spouses.
A group of retirees also has sought to challenge the law in court but has not been able to make much headway.
It seems to particularly rankle many retirees that some states have ruled retired pay must be shared with a former spouse for life, regardless of the length of the marriage or the military career.
It’s not surprising that feelings on this issue run hot on both sides. But the USFSPA remains the law of the land — and there is no serious push within Congress to change it.
Alex Keenan, a retired command master chief, served 28 years in the Coast Guard. E-mail him at retired@atpco.com.
Ellie
U.S. Military (Ret.)
Former spouse protection act elicits strong opinions
By Alex Keenan
Special to the Times
In the 24 years since enactment of the Uniformed Services Former Spouse Protection Act, much confusion has swirled around the issue of entitlements and benefits due to the divorced spouses of retired service members.
Passions run high on this issue. Most veterans’ groups, as well as some members of Congress, feel this law should be repealed. Spouses, naturally, feel differently. I regularly get mail on this issue from both sides. Therefore, I thought it might be useful to explain a bit about how we got to where we are today.
On June 26, 1981, the Supreme Court held in McCarty vs. McCarty that federal law precluded a California court from dividing military nondisability retirement pay under state community property laws.
The Supreme Court found that dividing a military pension in state court threatened grave harm to “clear and substantial” federal interests, such as providing for retired service members in their old age and encouraging enlistment and re-enlistment.
The court viewed military pensions as different from other pension systems because the retiree is subject to recall to active duty at any time, continues to be subject to the Uniform Code of Military Justice and is restricted in post-service activities. Military retirement pay historically had been considered not a “pension,” but reduced pay for reduced services.
The McCarty decision also noted that dividing military pensions made it less likely that the retired service member would choose to reduce his retirement pay still further by purchasing an annuity for the surviving spouse and children.
Bottom line: The Supreme Court reversed the California superior court decision but invited Congress to change the law if it so desired. And it did. The Uniformed Services Former Spouse Protection Act was enacted Sept. 8, 1982, retroactive to June 25, 1981, one day prior to the McCarty decision.
Congress rejected the Supreme Court’s ruling in McCarty regarding the effects of dividing retirement pay on military retention and enlistment, and the economic needs of older veterans.
Ever since, the USFSPA has applied to the Army, Navy, Air Force, Marine Corps and Coast Guard, and the commissioned corps of the National Oceanic and Atmospheric Administration and Public Health Service.
Since the USFSPA is a federal statute, its provisions and the regulations that stem from it pre-empt or supersede state laws. The law, with limitations, allows state courts to treat a military pension either as property solely of the service member or as property of the member and his spouse in accordance with the law of the jurisdiction for pay periods beginning after June 25, 1981.
Congress was strongly opposed by the executive branch, the Civil Service Commission, the Government Accountability Office (then the General Accounting Office) and most military and veterans’ organizations.
Soon-to-be retirees saw it as a slap and claimed that military retirement pay is “the personal entitlement of the retiree.”
Many military spouses were, and have remained, adamant that they earn a portion of service members’ retirement pay during years of moving, starting new jobs and filling the role of both mom and dad when the military spouse is deployed.
Attempts have been made over the past 24 years to repeal or overhaul the law. In 1998, Congress asked the Pentagon to review the issues and make recommendations for change. The Pentagon offered a history of the issues involved, but essentially stayed neutral on the merits of the law and balanced recommended changes benefiting service members with similar changes to benefit former spouses.
A group of retirees also has sought to challenge the law in court but has not been able to make much headway.
It seems to particularly rankle many retirees that some states have ruled retired pay must be shared with a former spouse for life, regardless of the length of the marriage or the military career.
It’s not surprising that feelings on this issue run hot on both sides. But the USFSPA remains the law of the land — and there is no serious push within Congress to change it.
Alex Keenan, a retired command master chief, served 28 years in the Coast Guard. E-mail him at retired@atpco.com.
Ellie