PDA

View Full Version : Group takes protection-act dispute to Supreme Court



thedrifter
02-27-07, 07:54 AM
Group takes protection-act dispute to Supreme Court

By Karen Jowers - Staff writer
Posted : March 05, 2007

A group of military retirees that has waged a long and so far unsuccessful challenge against a law allowing military retired pay to be divided as marital property in divorce cases has taken its fight to the final legal frontier — the Supreme Court.

Attorneys for the 58 military retirees who are plaintiffs in a lawsuit challenging the 25-year-old Uniformed Services Former Spouses’ Protection Act filed a petition with the high court Feb. 12.

The retirees, part of the 3,000-member USFSPA Litigation Support Group, first filed a lawsuit in the U.S. District Court for the Eastern District in Virginia in April 2004, where their request was denied. A subsequent appeal to the U.S. 4th Circuit Court of Appeals also was denied in November.

The retirees want the Supreme Court to exclude military retirement pay from a couple’s assets when dividing property during divorce proceedings, on the premise that military retired pay is not a pension but rather compensation for “future services to be rendered to our armed forces (including being subject to military discipline and recall for active duty),” according to the petition.

Doris Mozley, a longtime advocate for divorced military spouses, said the group is “clutching at straws.”

“Their petition shows how flimsy their argument is,” said Mozley, chairwoman of the Committee for Equality and Justice for the Military Wife. “They’ve been told by several courts now that the [law] is constitutional. They’re selfish. We just want to be treated like anybody else whose pension is treated as marital property.”

All other pensions, including those paid by the FBI, police forces and the private sector, can be divided as marital property.

The retirees contend that the Former Spouses’ Protection Act runs counter to a 1981 Supreme Court ruling that military retired pay is a “personal entitlement not subject to state community property laws,” said attorney Jonathan Katz in a Feb. 19 statement announcing the appeal.

The Former Spouses’ Protection Act, passed after the 1981 ruling, requires states to allow military retirement to be treated as marital property, but does not spell out how states should divide the retired pay. States vary in the ways they apply the federal law, which makes it unconstitutional, the retirees say.

They also contend that the law was unconstitutionally applied to members already in the armed forces at the time it was enacted 25 years ago, and even to those who retired before then.

In addition, the retirees say the law’s garnishment mechanisms for providing payments to former spouses do not give sufficient due process to military retirees. They say there is no procedure for retirees to challenge wrongful garnishments, or to claim refunds for money improperly paid to former spouses.

Mozley noted that spouses do not always receive part of a service member’s retired pay in divorce proceedings.

“I wish we had a presumption to be entitled to a pro-rata share of the retirement based on a congressional statute, but we don’t,” she said.

The Supreme Court generally takes about six weeks to decide whether it will review a case. More than 8,000 cases are filed with the court each term, according to its Web site, and of those, only about 100 are granted review, argued and decided by written opinion.

Ellie