Calling for a truce on the military divorce battlefield: A proposal to amend the USFSPA

Military Law Review

Volumn , Issue 168, 2001, Pages 40-155

  Bradley, Mary J ^a,b,c  

^a Claims Service Europe   (Germany)

^b U S ARMY   (United States)

^c UNIVERSITY OF MASSACHUSETTS   (United States)

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EID: 0041077069     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (473)

1. Judge Advocate General's Corps, United States Army. Presently assigned as Deputy Chief, Claims Service Europe, Mannheim, Germany. LL.M, 2001, The Judge Advocate General's School, United States Army, Charlottesville, Virginia; J.D., 1992, Suffolk University Law School, Boston, Massachusetts; B.A., 1989, University of Massachusetts, Amherst, Massachusetts. Previously assigned as Student, 49th Judge Advocate Officer Graduate Course, The Judge Advocate General's School, Charlottesville, Virginia; Editor, Military Law Review, Legal Research and Communications Department, The Judge Advocate General's School, U.S. Army, 1998-2000; Appellate Attorney, Defense Appellate Division, U.S. Army Legal Service Agency (1996-1998), Trial Counsel and Legal Assistance Attorney, 25th Infantry Division & U.S. Army Hawaii, Schofield Barracks, Hawaii (1993-1996). Member of the bars of New York, Massachusetts, U.S. Army Court of Criminal Appeals, U.S. Court of Appeals for the Armed Forces, and U.S. Supreme Court This article was submitted in partial completion of the Master of Laws requirements of the 49th Judge Advocate Officer Graduate Course. The author wishes to thank Major Michael Boehman for his guidance on this article, and Lieutenant Colonel Thomas Emswiler for his insight into the issues and parties involved in the former spouses' debate.
2. Military Retirees, Ex-spouses, Battle, BEAUFORT GAZETTE (S.C.), July 14, 2000.
3. BLACK'S LAW DICTIONARY 493 (7th ed. 1999) [hereinafter BLACK'S].
4. Fifty-five percent of all marriages end in divorce. The military divorce rate is generally the same as the civilian divorce rate. MARSHA L. THOLE & FRANK W. AULT, DIVORCE AND THE MILITARY II vii (1998).
5. Just as military divorce is different from civilian divorce, so is military marriage. A military marriage must contend with more and greater hardship than the average civilian couple. See id. at 71.
6. Some service members are eligible for early retirement at fifteen years. However, this article refers to the typical twenty-year career as the point retired pay vests.
7. Military retired pay is frequently the most significant asset acquired during a military member's marriage. Military pensions often have greater value than nonmilitary pensions because payments begin immediately upon retirement and do not have to wait until the retiree reaches a certain age. Some military members retire before the age of forty and begin receiving retired pay immediately; compare this to a nonmilitary pension that may not be paying until age fifty-five or sixty. See MARSHAL S. WILLICK, MILITARY RETIREMENT BENEFITS IN DIVORCE XX (1998) (noting that in military divorces, the retired pay often exceeds the value of all other assets combined, including the house); Letter from Marshal S. Willick, Esq., Family Law Section of the ABA, to Francis M. Rush Jr., Acting Assistant Secretary of Defense, subject: Comprehensive Review of the Federal Former Spouse Protection Law, at 2 (Mar. 14, 1999) [hereinafter ABA Position Letter] (on file with author) ("[I]f [retired pay] is inequitably divided, it is usually impossible to make a military divorce fair to both parties."); Letter from Marilyn H. Sobke, President, National Military Family Association, to Office of the Assistant Secretary of Defense for Force Management Policy, subject: Comments of the National Military Family Association on the Uniformed Services Former Spouses' Protection Act (Feb. 12, 1999) [hereinafter NMFA Position on Letter] (responding a Federal Register Notice of Dec. 23, 1998) (on file with author). Besides their military retirement, the only retirement savings service members may have are individual retirement accounts (IRAs) or private savings. Many military families' financial situations do not do not allow them to save for retirement. Department of Defense (DOD) surveys reveal fifty percent of members do not have any appreciable levels of savings. ARMED FORCES FINANCIAL NETWORK, SURVEY OF ARMED FORCES FINANCIAL NEEDS AND BEHAVIORS 16 (1996), cited in OFFICE OF ASSISTANT SECRETARY OF DEFENSE, FORCE MANAGEMENT POLICY REPORT (May 21, 1998). Service members save one half of the amount saved by the average citizen. Id. But see THOLE & AULT, supra note 4, at 28 (noting that military 7. (continued) retired pay used to be the only major asset of the military couple, but that is no longer the case; couples now own real estate, individual retirement accounts (IRAs), and other investments).
8. 10 U.S.C. § 1408 (2000). The USFSPA applies to the Office of the Secretary of Defense, the Military Departments, the Coast Guard (under agreement with the Department of Transportation), the Public Health Service (PHS) (under agreement with the Department of Health and Human Services), and the National Oceanic and Atmospheric Administration (NOAA) (under agreement with the Department of Commerce). See 32 C.F.R. § 63.2 (2000) (explaining the applicability and scope of former spouse payments from retired pay). The "uniformed services" aspect of the USFSPA applies to the Army, Navy, Air Force, Marine Corps, Coast Guard, commissioned corps of the PHS, and commissioned corps of the NOAA. Id. Because NOAA and PHS have relatively few USFSPA cases, this article focuses on the USFSPA and military services. See Interview with Lieutenant Colonel Thomas K. Emswiler, at the Pentagon, Washington D.C. (Feb. 1, 2001) [hereinafter Emswiler Interview].
9. The proportion of military spouses in the labor force increased from fifty-four percent in 1985 to sixty-five percent in 1998. THOLE & AULT, supra note 4, at vii. The changing role of women in the military began with the women's movement in the 1970s. The increase of women entering the military increased the number of male spouses. Courts began to deal with a new set of challenges as these women started to retire in the 1990s. Id.
10. See infra note 164 and accompanying text (discussing former service members who were imprisoned for contempt for failing to make USFSPA payments).
11. The Uniformed Services Former Spouses' Protection Act, Pub. L. 97-252, 96 Stat. 730 (1982) (codified as amended at 10 U.S.C. §§ 1072, 1076, 1086, 1408, 1447, 1448, 1450, 1451 (2000)). Among other things, the USFSPA allowed state courts to reconsider judgments in light of their marital property and procedural laws, disregarding the decision in McCarty v. McCarty, 453 U.S. 210 (1981). The USFSPA took effect on 1 February 1983 and applied retroactively to the date of the McCarty decision, 26 June 1981. 10 U.S.C. § 1408(c)(1).
12. See McCarty, 453 U.S. at 210 (holding that certain state community property laws are preempted by the federal law).
13. 10 U.S.C. § 1408(c)(1) (emphasis added). But see THOLE & AULT, supra note 4, at 7 ("The USFSPA has operated in theory as an option but in practice as a mandate.").
14. See LEGAL ASSISTANCE BRANCH, ADMINISTRATIVE AND CIVIL LAW DEPARTMENT, UNIFORMED SERVICES FORMER SPOUSES' PROTECTION ACT, JA 274, app. B (Feb. 1999) [hereinafter JA 274] (providing a state-by-state analysis of the divisibility of military retired pay); see also THOLE & AULT, supra note 4, at 161-85 (same); Major Janet Fenton, Former Spouses' Protection Act Update, ARMY LAW., July 1996 at 22-28 (same).
15. See infra note 64 (providing an overview of the amendments to the USFSPA).
16. See id.
17. Republican, North Carolina.
18. H.R. 1983, 107th Cong. (2001). The primary proposals of the Equity Act are: (1) the termination of USFSPA payment of retirement to a former spouse upon remarriage; (2) award of retired pay to be based on retiree's length of service and pay grade at time of divorce; (3) a statute of limitations for seeking division of retired pay; and (4) a limitation on apportionment of disability pay when retired pay has been waived.
19. Representative Stump (Republican, Arizona) was the author of the Equity Act of 1999, H.R. 72, 106th Cong. (1999).
20. See discussion infra Section IV (providing the views and opinions of former spouses and former service members.)
21. Specific proposals are included in Section V infra and in the Appendix.
22. Court opinions express disgust with the USFSPA. See, e.g., Ratkowski v. Ratkowski, 769 P.2d 569, 572 (Idaho 1989) (Shepard, C.J., dissenting) ("In the instant case, although the result is unfair, and palpably unjust, nevertheless I feel it mandated by the insulation afforded by the federal [USFSPA] statutes.").
23. Animosity between the parties is evident whenever the USFSPA is publicly discussed. One example is the repartee in a series of editorials in the San Antonio Express-News in July 2000. John Verburgt, Senior Master Sergeant, U.S. Air Force (Retired), Law Promotes Divorce (Editorial), SAN ANTONIO EXPRESS-NEWS, July 8, 2000, at 6B; Mary L. Gallagher, Pay is Community Property (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July); Karen Silvers, Get the Facts Straight (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July, but she gets the facts wrong, incorrectly stating that the marriage must last for ten years before the former spouse can receive any portion of the retired pay; such a minimum term of years is not required); Roy Alba, U.S. Air Force (Retired), Ex-Military Wives Wrong (Editorial), SAN ANTONIO EXPRESS-NEWS, July 27, 2000, at 4B (responding to editorials written by former military wives).
24. Animosity between the parties is evident whenever the USFSPA is publicly discussed. One example is the repartee in a series of editorials in the San Antonio Express-News in July 2000. John Verburgt, Senior Master Sergeant, U.S. Air Force (Retired), Law Promotes Divorce (Editorial), SAN ANTONIO EXPRESS-NEWS, July 8, 2000, at 6B; Mary L. Gallagher, Pay is Community Property (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July); Karen Silvers, Get the Facts Straight (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July, but she gets the facts wrong, incorrectly stating that the marriage must last for ten years before the former spouse can receive any portion of the retired pay; such a minimum term of years is not required); Roy Alba, U.S. Air Force (Retired), Ex-Military Wives Wrong (Editorial), SAN ANTONIO EXPRESS-NEWS, July 27, 2000, at 4B (responding to editorials written by former military wives).
25. Animosity between the parties is evident whenever the USFSPA is publicly discussed. One example is the repartee in a series of editorials in the San Antonio Express-News in July 2000. John Verburgt, Senior Master Sergeant, U.S. Air Force (Retired), Law Promotes Divorce (Editorial), SAN ANTONIO EXPRESS-NEWS, July 8, 2000, at 6B; Mary L. Gallagher, Pay is Community Property (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July); Karen Silvers, Get the Facts Straight (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July, but she gets the facts wrong, incorrectly stating that the marriage must last for ten years before the former spouse can receive any portion of the retired pay; such a minimum term of years is not required); Roy Alba, U.S. Air Force (Retired), Ex-Military Wives Wrong (Editorial), SAN ANTONIO EXPRESS-NEWS, July 27, 2000, at 4B (responding to editorials written by former military wives).
26. Animosity between the parties is evident whenever the USFSPA is publicly discussed. One example is the repartee in a series of editorials in the San Antonio Express-News in July 2000. John Verburgt, Senior Master Sergeant, U.S. Air Force (Retired), Law Promotes Divorce (Editorial), SAN ANTONIO EXPRESS-NEWS, July 8, 2000, at 6B; Mary L. Gallagher, Pay is Community Property (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July); Karen Silvers, Get the Facts Straight (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July, but she gets the facts wrong, incorrectly stating that the marriage must last for ten years before the former spouse can receive any portion of the retired pay; such a minimum term of years is not required); Roy Alba, U.S. Air Force (Retired), Ex-Military Wives Wrong (Editorial), SAN ANTONIO EXPRESS-NEWS, July 27, 2000, at 4B (responding to editorials written by former military wives).
27. Animosity between the parties is evident whenever the USFSPA is publicly discussed. One example is the repartee in a series of editorials in the San Antonio Express-News in July 2000. John Verburgt, Senior Master Sergeant, U.S. Air Force (Retired), Law Promotes Divorce (Editorial), SAN ANTONIO EXPRESS-NEWS, July 8, 2000, at 6B; Mary L. Gallagher, Pay is Community Property (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July); Karen Silvers, Get the Facts Straight (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's editorial of 8 July, but she gets the facts wrong, incorrectly stating that the marriage must last for ten years before the former spouse can receive any portion of the retired pay; such a minimum term of years is not required); Roy Alba, U.S. Air Force (Retired), Ex-Military Wives Wrong (Editorial), SAN ANTONIO EXPRESS-NEWS, July 27, 2000, at 4B (responding to editorials written by former military wives).
28. See supra note 11.
29. 453 U.S. 210 (1981). Supreme Court decided McCarty on 26 June 1981. Before 1980, state domestic relation law pertaining to military retired pay varied widely. See WILLICK, supra note 7, at 9.
30. S. REP. No. 97-502, at 4 (1982), reprinted in 1982 U.S.C.C.A.N. 1596, 1598.
31. Congress enacted the USFSPA on 8 September 1982. Passing the USFSPA attracted little attention at the time beacuse it was a rider to the annual DOD Authorization Act. See THOLE & AULT, supra note 4, at 24.
32. Early critics of the USFSPA believed that Congress enacted the USFSPA too quickly. See, e.g., Comment, The Uniformed Services Former Spouses Protection Act: A Partial Return of Power, 11 W. ST. U.L. REV. 71 (1983).
33. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984).
34. United States v. Yazell, 382 U.S. 341, 352 (1966).
35. McCarty v. McCarty, 453 U.S. 210, 216 (1981).
36. Id. at 218 (discussing community property, quasi-community property, and marital property). In community property states, each party has a 50-50 right to all property acquired during the marriage. Quasi-community property is property acquired outside the state that would have been community property if acquired within the state; community property states divide this property like community property. See WILLICK, supra note 7, at 9. In equitable distribution states, the court divides the property "equitably," which may not be a 50-50 split. See THOLE & AULT, supra note 4, at 19; see generally Captain Kristine D. Kuenzli, Uniformed Services Former Spouses' Protection Act: Is There Too Much Protection for the Former Spouse?, 47 A.F. L. REV. 1, 2-3 (1999) (discussing basic marital property law including community property states versus common-law property states and classifying property acquired during marriage which affects distribution of assets at divorce).
37. McCarty, 453 U.S. at 221.
38. Id. (discussing United States v. Tyler, 105 U.S. 244 (1882), Hooper v. United States, 326 F.2d 982 (1964)).
39. Several former service members and their organizations still argue "reduced pay for reduced service" as the reason why retired pay is not property, and thus payment from retired pay should end upon a former spouse's remarriage. See infra Section IV.A.1.
40. McCarty, 453 U.S. at 223.
41. Id. at 232.
42. Id. at 232-33.
43. Id. at 234.
44. Id. at 235.
45. Id. at 232. The Court used a two-step analysis to decide the preemption issue. Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) (establishing the two-part preemption test). First, the Court determined that Congress intended to grant retired service members a "personal entitlement" to the benefits and dividing this entitlement in conformity with state-community property provisions conflicted with federal military retirement statutes. McCarty, 453 U.S. at 232 (citing S. REP NO. 1480, at 6 (1968), reprinted in 1968 U.S.C.C.A.N. 3294, 3298). Second, the Court considered whether the "application of community property principles to military retired pay threatened grave harm to clear and substantial federal interests." McCarty, 453 U.S. at 232.
46. McCarty, 453 U.S. at 233-35.
47. Id. at 236.
48. Id. at 235-36.
49. Id. at 236.
50. See, e.g., Leonard Bierman & John Hershberger, Federal Preemption of State Family Proprety Law: The Marriage of McCarty and Ridgway, 14 PAC. L.J. 27 (1982); Anne Moss, Women's Pension Reform: Congress Inches Toward Equity, 19 U. MICH. J.L. REFORM 165 (1985); Note, McCarty v. McCarty: A Former Spouse's Claim to a Service Member's Military Retired Pay is Shot Down, 13 LOY. U. CHI. L.J. 555 (1982); Note, McCarty v. McCarty, the Battle Over Military Nondisability Retirement Benefits, 34 BAYLOR L. REV. 335 (1982); Note, Military Retirement Pay Not Subject to Division as Community Property Upon Divorce: McCarty v. McCarty, 19 HOUS. L. REV. 591 (1982); Note, Federal Law Preempts State Treatment of Military Retirement Benefits as Community Property: McCarty v. McCarty, 13 TEX. TECH. L. REV. 212 (1982); Louise Raggio & Kenneth Raggio, McCarty v. McCarty: The Moving Target of Federal Pre-emption Threatening All Non-Employee Spouses, 13 ST. MARY'S L.J. 505 (1982).
51. 128 CONG. REC. 18,314-15 (1982) (letter from Robert D. Evans, Director, ABA) (Evans further stated: "More specifically, this decision has cast a shadow over untold thousands of final divorce decrees in this country.").
52. By 1981, a growing body of state domestic law included division of pensions and retired pay. Case decisions in virtually all community property states and a number of common law property states employing equitable distribution principles, specifically considered military retired pay as an asset of the marriage and subject to division. At least six other states had specifically ruled that military retired pay could not be considered marital property. S. REP. NO. 97-502, at 2 (1982), reprinted in 1982 U.S.C.C.A.N. 1555, 1597.
53. "The primary purpose of the bill is to remove the effect of the United States Supreme Court decision in McCarty v. McCarty." Id. at 1, reprinted in 1982 U.S.C.C.A.N. at 1596.
54. Id. at 6, reprinted in 1982 U.S.C.C.A.N. at 1601 (discussing the contribution of military spouses to military life). "The concept of the military family and its importance to military life is widespread and publicized. Military spouses are still expected to fulfill an important role in the social life and welfare of the military community." Id. Childcare and management of the family household are many times solely the spouse's responsibility. The military spouse lends a cohesiveness to the family facing the rigors of military life, including protracted and stressful separations. The committee finds that frequent change-of-station moves and the special pressures placed on the military spouse as a homemaker make it extremely difficult to pursue a career affording economic security, job skills, and pension protection. Therefore, the committee believes that the unique status of the military spouse and the spouse's great contribution to our defense require that the status of the military spouse be acknowledged, supported, and protected. Id.
55. Id. at 6, reprinted in 1982 U.S.C.C.A.N. at 1601. "[T]he committee received extensive testimony from the uniformed services and public witnesses on the contributions and sacrifices made by the military spouse throughout the service member's career." Id.
56. Id. at 6-7, reprinted in 1982 U.S.C.C.A.N. at 1601.
57. Id. at 7, reprinted in 1982 U.S.C.C.A.N. at 1601-02. While DOD voiced these concerns, the agency did not submit any empirical data to support their concern on retention and manpower. The Committee on Armed Services conducted their own research and found that community property states seemed to handle retirement pay fairly. This research assisted their decision to allow the states to divide military retired pay. Id.
58. Id. at 7, reprinted in 1982 U.S.C.C.A.N. at 1601.
59. Id. at 7-8, reprinted in 1982 U.S.C.C.A.N. at 1602-03. According to the DOD, domestic relations matters should primarily be governed by state law, through state courts. Id. at 8, reprinted in 1982 U.S.C.C.A.N. at 1601.
60. The term "forum shopping" in this context implies a search for the jurisdiction with the most advantageous law and procedures in which to commence a divorce proceeding. The most favorable jurisdiction might be a state with which the spouse or service member has had little previous contact. See BLACK'S, supra note 3, at 666. S. REP. NO. 97-502, at 8 (1982), reprinted in 1982 U.S.C.C.A.N. 1555, 1603.
61. S. REP. NO. 97-502, at 8, reprinted in 1982 U.S.C.C.A.N. at 1603.
62. The USFSPA does not require a state to divide military retired pay; it merely provides a means to enforce valid state court orders that divide retired pay as martial property. Many early post-McCarty cases discussed the purpose of the USFSPA. See, e.g., Allen v. Allen, 488 So. 2d 199 (3d. Cir. 1986) (stating that the USFSPA was intended to end the adverse effect of McCarty, which held that federal law precludes state courts from dividing military non-disability retirement pay pursuant to state law); Neese v. Neese, 669 S.W.2d 388 (Tex. Ct. App. 1984) (stating simply that the USFSPA is intended to place courts in the same position they were in before the McCarty decision); Steczo v. Steczo, 659 P.2d 1344 (Ariz. Ct. App. 1983) (stating that the effect of the USFSPA is to allow state courts to apply their community property law regarding divisibility of military retirement to all cases pending in trial court and on appeal).
63. Congress intended to negate the effect of McCarty, which is why the USFSPA applied retroactively to the date of the McCarty decision.
64. 10 U.S.C. § 1408(a)(4), (c)(1) (2000). The definition of disposable retired pay is included infra Section III.C.
65. 10 U.S.C. § 1408 (c)(2); see Kuenzli, supra note 32, at 15-16, 84, nn.106-11; Practice Note, When is Property Not Really Property?, ARMY LAW., Sept. 1995 at 28. See also S. REP. NO. 97-502, at 16, reprinted in 1982 U.S.C.C.A.N. 1596, 1611 ("[F]ormer spouse should have no greater interest in the retired or retainer pay of a member than the member has. And a member has no right to transfer his retired or retainer pay on death.").
66. 10 U.S.C. § 1408(c)(3); Kuenzli, supra note 32, at 85 (explaining that even though former spouses may be unfairly disadvantaged by delay in retirement after a service member becomes eligible, a state cannot force retirement; some states give the former spouse the option to begin collecting upon eligibility).
67. 10 U.S.C. § 1408(c)(4); Kuenzli, supra note 32, at nn.86, 118-21 (noting that the jurisdictional requirements are greater than a "minimum contacts" test).
68. Nearly every Congress has amended the USFSPA. Although many of these are merely updates or technical corrections, some amendments are substantive in nature. Act of Oct. 19, 1984, Pub. L. 98-252, 98 Stat. 2547 (amending the USFSPA to incorporate payment of child support or alimony in the direct payment provision; clarifying the definition of court order to provide that a "division of property" was required to allow payment of disposable retired pay); Act of Nov. 14, 1986, Pub. L. 99-661, 100 Stat. 3887 (amending the definition of disposable retired pay to deduct from inclusion the payments as "government life insurance premiums (not including amounts deducted for supplemental coverage)"); Act of April 21, 1987, Pub. L. 100-26, 101 Stat. 273, 282 (updating a cross-reference to an Internal Revenue Service Code); Act of Nov. 29, 1989, Pub. L. 101-189, 103 Stat. 1462, 1605 (updating cross-references to other sections of the U.S.C.); Act of Nov. 5, 1990, Pub. L. 101-510, 104 Stat. 1569, 1570 (deleting all references to "retainer" as part of retired pay; limiting the applicability of the USFSPA to court actions occurring after 25 June 1981; amending the definition of disposable retired pay); Act of Dec. 5, 1991, Pub. L. 102-190, 105 Stat. 1472 (adding a section heading); Oct. 23, 1992, Pub. L. 102-484, 106 Stat. 2426 (adding section to address the "benefits for dependents who are victims of abuse by members losing right to retired pay"); Act of Nov. 30, 1993, Pub. L. 103-160, 107 Stat. 1666, 1771 (clarifying the section that covers victims of abuse); Act of Feb. 10, 1996, Pub. L. 104-106, 110 Stat. 499 (amending cross reference to another United States Code section); Act of Aug. 22, 1996, Pub. L. 104-193, 110 Stat. 2246, 2249 (clarifying the USFSPA relationship to the Social Security Act; adding a section entitled "certification date"); Act of Sept. 23, 1996, Pub. L. 104-201, 110 Stat. 2579 (updating methods of service of process and service of a court order to the secretary); Act of Nov. 18, 1997, Pub. L. 105-85, 111 Stat. 1901 (making technical corrections). See generally WILLICK, supra note 7, at 17-22 (providing an overview of USFSPA amendments).
69. Act of Oct. 19, 1984, Pub. L. 98-252, 98 Stat. 2547. The implementing regulation defines child support as: Periodic payments for the support and maintenance of a child or children, subject to and in accordance with State law under 42 U.S.C. [§]662(b). It includes, but is not limited to payments to provide for health care, education, recreation, and clothing or to meet other specific needs of such a child or children. 32 C.F.R. § 63.3(c) (2000). Alimony is defined as: Period payments for the support and maintenance of a spouse or former spouse in accordance with State law under 42 U.S.C. 662(c). It includes but is not limited to, spousal support, separate maintenance, and maintenance. Alimony does not include any payment for the division of property. 32 C.F.R. § 63(a).
70. See Act of Nov. 5, 1990, Pub. L. 101-510, 104 Stat. 1569, 1570 (deleting all references to "retainer" as part of retired pay; limiting the applicability of the USFSPA to court actions occurring after 25 June 1981; amending the definition of disposable retired pay to exclude federal income tax withholding). Congress revised the definition of disposable retired pay to exclude federal income tax withholdings to remedy a problem created after they enacted the USFSPA. Former service members were tinkering with their exemption claims. Former service members would claim the fewest exemptions possible so that the government would withhold the maximum amount each month. This act would reduce their disposable income and reduce the amount of money a former spouse would receive each month. Former service members, however, could recover the withheld taxes when they filed their income taxes each year. See also Act of Nov. 14, 1986, Pub. L. 99-661, 100 Stat. 3887 (amending the definition of disposable retired pay to deduct from inclusion the payments as "government life insurance premiums (not including amounts deducted for supplemental coverage)").
71. Act of Oct. 23, 1992, Pub. L. 102-484, 106 Stat. 2426 (adding section to address the "benefits for dependents who are victims of abuse by members losing right to retired pay").
72. Act of Nov. 18, 1997, Pub. L. 105-85. 111 Stat. 1799 (requiring the Secretary of Defense to review and report on the protections, benefits and treatment afforded retired uniformed services members compared to retired civilian government employees); Act of Oct. 23, 1992, Pub. L. 102-484, 106 Stat. 2429 (requiring the Secretary of Defense to conduct a study and provide a report to estimate the number of people effected by the section addressing benefits to victims of abuse).
73. Act of Nov. 18, 1997, Pub. L. 105-85, § 643(a), 111 Stat. 1799.
74. In the original USFSPA, Congress provided that the statute was retroactive until one day before the McCarty decision. The effect of retroactivity on state laws and individual cases was highly litigated during the early years of the USFSPA. Some states enacted legislation to handle the requests to reopen military divorce cases and even established deadlines for doing so. See THOLE & AULT, supra note 4, at 23-24. Because retroactivity does not affect divorces that occurred after the USFSPA effective date in 1983, this article does not discuss retroactivity and related issues. See generally WILLICK, supra note 7, at 15-17 (discussing the window period or "gap" in USFSPA law).
75. 10 U.S.C. § 1408(c)(4) (2000). See generally WILLICK, supra note 7, at 56-62 (discussing jurisdictional requirements and issues).
76. These are often referred to as minimum contacts or long-arm statutes.
77. See discussion supra note 48 (explaining the trends in marital property law at the time the USFSPA was proposed and enacted). All states now allow division of military retired pay as marital property. See supra note 14 (providing resources that list retired pay division in all fifty states).
78. S. REP NO. 97-502, at 8-9 (1982), reprinted in 1982 U.S.C.C.A.N. 1555, 1603-04 (expressing DOD's concerns about forum shopping); H.R. CONF. REP. NO. 97-749, 2d. Sess. (1982), reprinted in 1982 U.S.C.C.A.N. 1571 (same). See Kuenzli, supra note 32, at 10 (providing additional information about forum shopping concerns during the review the original USFSPA).
79. Under the USFSPA, domicile means more than where the service member is currently living. Domicile requires that the party have the intent to remain in that state. A person can demonstrate domicile through evidence of paying state income and property taxes voting registration, bank accounts, automobile registration and title, driver's license, and ownership of property. See Mark Sullivan, Military Pension Division: Scouting the Terrain, SILENT PARTNER, at 2-3, available at http://www.abanet.org/family/military/home.html (last visited Mar. 8, 2001).
80. 10 U.S.C. § 1408(c) (setting forth these jurisdictional requirements). See, e.g., Steel v. United States, 813 F.2d 1545 (9th Cir. 1987) (holding that a court that had jurisdiction of parties is not allowed to invoke powers of the USFSPA unless personal jurisdiction has been acquired by domicile or consent or residence other than by military assignment; careful reading of §1408(c)(1) reveals that provision is limitation on subject-matter, rather than personal jurisdiction).
81. 10 U.S.C. § 1408(c) specifically applies to "the disposable retired pay of a member" as property and does not mention when disposable retired pay is treated as income, that is, for child support or alimony payments. Thus, courts can use the minimum contacts for a divorce hearing to order child support or alimony paid from retired pay.
82. These include: Puerto Rico, Guam, American Samoa, the Virgin Islands, North Mariana Island, and the Trust Territory of the Pacific. Id. § 1408(a).
83. Id. § 1408(a)(1) (defining court); 32 C.F.R. § 63.3(d) (defining court for the purposes of the USFSPA implementing regulation).
84. For a foreign court to hear USFSPA cases, the United States must have a treaty with that country that specifically requires the United States to honor court orders of such nation. 10 U.S.C. § 1408(a)(1)(C). No such treaty is in force regarding court orders of any nation, however. In Brown v. Harms, 863 F. Supp. 278 (E.D. Va. 1994), an action by a former spouse of a retired military officer for partition of the retirement pay was dismissed because the divorce occurred in a German court.
85. Unlike other property, however, retired pay when treated as property cannot be sold or divested. See 10 U.S.C. § 1408; THOLE & AULT, supra note 4, at 51.
86. 10 U.S.C. § 1408(c). "Today, all 50 states have recognized military retirement benefits as property, belonging to both parties to the extent earned during the marriage. This is in keeping with the treatment by the states of all other federal, state, and private retirement and pension plans." ABA Position Letter, supra note 7, at 2. But see Delucca v. Colon, 119 P.R. Dec. 720 (1987) (reestablishing retirement pensions as separate property of the spouse in Puerto Rico; however, pensions may be considered in setting child support and alimony obligations).
87. The USFSPA does not provide or require a state to divide disposable retired pay in any particular manner. The parties must look to state law for a "formula" or explanation of the division. Some typical formulas are as follows: length of overlap of 1/2 × marriage & service × 100 = % time in service length of overlap of 1/2 × marriage & service × 100 = % length of service at time of separation or divorce See JA 274, supra note 14, at 6. See generally Captain Mark E. Henderson, Dividing Military Retirement Pay and Disability Pay: A More Equitable Approach, 134 MIL. L. REV. 87 (1991); Practice Note, Colorado Reinforces the "Time Rule" Formula for Division of Military Pensions, ARMY LAW., Aug. 1998, at 27.
88. See infra Section IV.A discussing former service members concerns about the USFSPA.
89. See supra note 14 (providing resources on state law). All states now have clearly ruled that military retired pay is divisible for property settlement purposes. The primary exception is Puerto Rico.
90. See Coates v. Coates, 650 S.W.2d 307 (Mo. 1983) (awarding a portion of the former service member's pension to the spouse in a legal separation proceeding in vew of the USFSPA).
91. See infra Section III.H for a discussion of early retirement separation benefits and the USFSPA).
92. 10 U.S.C. § 1408(c) (2000) (providing authority for a court to treat retired pay as property of the marriage; this section does not include a vesting requirement).
93. See FLA. STAT. § 61.075(3)(a)(4) (1988) (stating that as of 1 Oct. 1988, all vested and non-vested pension plans are treated as marital property to the extent that they are accrued during the marriage); KAN. STAT. ANN. § 23-201(b) (1987) (stating that effective 1 July 1987, vested and non-vested military pensions are not marital property); NEB. REV. STAT. § 42-366(8) (1993) (stating that in Nebraska, military pensions are part of marital estate whether vested or not and may be divided as property or alimony); N.H. REV. STAT. ANN. § 458:16-a (1987) (stating that effective 1 January 1988 all vested and non-vested pensions or other retirement plans are divisible); VA. ANN. CODE § 20-107.3 (1988) 89. (continued) (defining, in Virginia, that marital property includes all pensions, whether or not vested). See also Lang v. Lang, 741 P.2d 649 (Alaska 1987) (holding that in Alaska, non-vested retirement benefits are divisible); Van Loan v. Van Loan, 569 P.2d 214 (Ariz. 1977) (holding that in Arizona, a non-vested military pension is community property); In re Brown, 544 P.2d 561 (Cal. 1976) (holding that in California, non-vested pensions are divisible); In re Marriage of Beckman & Holm, 800 P.2d 1376 (Colo. 1990) (holding that non-vested military retirement pay benefits constitute marital property subject to division pursuant to state law); Thompson v. Thompson, 438 A.2d 839 (Conn. 1981) (holding that in Connecticut, a non-vested civilian pension is divisible); Smith v. Smith, 458 A.2d 711 (Del. Fam. Ct. 1983) (holding that in Delaware, a non-vested pension is divisible); Barbour v. Barbour, 464 A.2d 915 (D.C. 1983) (holding that in D.C., a vested but not matured civil service pension is divisible; dicta suggests that non-vested pensions are also divisible); Courtney v. Courtney, 344 S.E.2d 421 (Ga. 1986) (holding that in Georgia, non-vested civilian pensions are divisible); In re Korper, 475 N.E.2d 1333 (Ill. 1985) (noting that by Illinois statute, a pension is marital property even if it is not vested); Poe v. Poe, 711 S.W.2d 849 (Ky. Ct. App. 1986) (holding that military retirement benefits are marital property even before they vest); Little v. Little, 513 So. 2d 464 (La. Ct. App. 1987) (holding that in Louisiana, non-vested and not matured military retired pay is marital property); Ohm v. Ohm, 541 A.2d 1371 (Md. 1981) (holding that in Maryland, non-vested pensions are divisible); Janssen v. Janssen, 331 N.W.2d 752 (Minn. 1983) (holding that non-vested pensions are divisible in Minnesota); Fairchild v. Fairchild, 747 S.W.2d 641 (Mo. Ct. App. 1988) (holding that in Missouri, both non-vested and not matured retired pay are considered marital property); Forrest v. Forrest, 608 P.2d 275 (Nev. 1983) (holding that in Nevada, all retirement benefits are divisible community property, whether vested or not, and whether matured or not); Whitfield v. Whitfield, 535 A.2d 986 (N.J. Super. Ct. App. Div. 1987) (stating that in New Jersey, non-vested military retired pay is marital property); In re Richardson, 769 P.2d 179 (Or. 1989) (holding that in Oregon, non-vested pension plans are marital property); Major v. Major, 518 A.2d 1267 (Pa. Super. Ct. 1986) (holding that in Pennsylvania, non-vested military retired pay is marital property); Ball v. Ball, 430 S.E.2d 533 (S.C. Ct. App. 1993) (holding that in South Carolina, a non-vested pension is subject to equitable division because a service member acquires a vested right to participate in a military pension plan when entering the uniformed services); Kendrick v. Kendrick, 902 S.W.2d 918 (Tenn. Ct. App. 1994) (holding that non-vested military pensions can property be characterized as marital property); Greene v. Greene, 751 P.2d 827 (Utah Ct App. 1988) (holding that under Utah law, a non-vested pension can be divided); Wilder v. Wilder, 534 P.2d 1355 (Wash. 1975) (holding that non-vested pensions are divisible); Butcher v. Butcher, 357 S.E.2d 226 (W. Va. 1987) (holding that vested and non-vested military retired pay is marital property subject to equitable distribution); Leighton v. Leighton, 261 N.W.2d 457 (Wis. 1978) (holding that non-vested pensions are divisible); Parker v. Parker, 750 P.2d 1313 (Wyo. 1988) (holding that in Wyoming, non-vested military retired pay is marital property). Some courts look at non-vested retired pay as divisible, but in a different way. See Caughron v. Caughron, 418 N.W.2d 791 (S.D. 1988) (holding that the present cash value of a non-vested retirement benefit is marital property).
94. See generally Major Janet Fenton, Practice Note, North Carolina Changes Vesting Requirements for Division of Pension, ARMY LAW., Feb. 1998, at 31.
95. See Messinger v. Messinger, 827 P.2d 865 (Okla. 1992) (holding that in Oklahoma, only a pension vested at the time of the divorce is divisible); Kirkman v. Kirkman, 555 N.E.2d 1293 (Ind. 1990) (holding that in Indiana, the right to receive retired pay must be vested as of the date of divorce petition in order for the spouse to be entitled to a share, but courts should consider the non-vested military retired benefits in adjudging a just and reasonable division of property); Durham V. Durham, 708 S.W.2d 618 (Ark. 1986) (holding that in Arkansas, military retired pay is not divisible where the member had not served twenty years at the time of the divorce, and therefore the military pension had not "vested"). Some courts that require vesting of pensions before division still look to find equity in the property division. See Lemon v. Lemon, 537 N.E.2d 246 (Ohio Ct. App. 1988) holding that nonvested pensions are divisible as marital property where some evidence of value demonstrated); Boyd v. Boyd, 323 N.W.2d 553 (Mich. Ct. App. 1982) (holding that in Michigan, where only vested pensions are divisible, a vested right is discussed broadly and discretion over what is marital property is left to the trial court).
96. 10 U.S.C. § 1408(e)1. See Smallwood v. Smallwood, 2000 Ala. Civ. App. LEXIS 674 (Nov. 3, 2000) (holding that payments of disposable retired pay are capped at fifty percent, even if the divorce incorporated a voluntary agreement for a greater division of property). However, this limit does not relieve a service member from liabiality of child support or alimony if such payments exceed the fifty percent cap. 10 U.S.C. § 1408(e)(5-6); 42 U.S.C. § 659 (2000).
97. 10 U.S.C. § 1408(c)(2).
98. Id. § 1408(c)(1).
99. The definition of disposable pay has changed since Congress first enacted the USFSPA. Originally, disposable retired pay included gross non-disability retired pay minus certain deductions, such as federal, state, and local income tax withholdings; federal employment taxes; life insurance; survivor benefit plan premiums in some cases; statutory offsets required by the retiree's receipt of federal civil service employment benefits; and statutory offsets required by the retiree's receipt of disability benefits from the Veterans Administration (VA). See 10 U.S.C. § 1408(a)(4) (1988) amended by the National Defense Authorization Act for 1991, Pub. L. No. 101-510, § 555, 104 Stat. 1569-70 (1990) (codified as amended at 10 U.S.C. § 1408(c)(1)(1994)). This well-defined version of disposable pay caused problems when state courts tried to reconcile it with the gross retired pay used in state statutes. Because of the confusion, and seemingly unfair division for the former spouse, many states ignored the USFSPA definition of disposable retired pay and divided gross retired pay. See Kuenzli, supra note 32, at 13-14 nn.92-95. See, e.g., Casas v. Thompson, 720 P.2d 921 (Cal. 1986); Deliduka v. Deliduka, 347 N.W.2d 52 (Minn. Ct. App. 1984); White v. White, 734 P.2d 1283 (N.M. Ct. App. 1987); Lewis v. Lewis, 350 S.E.2d 587 (N.C. Ct. App. 1986); Bullock v. Bullock, 354 N.W.2d 904 (N.D. 1984); Martin v. Martin, 373 S.E.2d 706 (S.C. 1988); Grier v. Grier, 731 S.W.2d 936 (Tex. 1987); Butcher v. Butcher, 357 S.E.2d 226 (W. Va. 1987). See generally WILLICK, supra note 7, at 70-79 (explaining the evolving definition of disposable retired pay).
100. 10 U.S.C. § 1408(a)(4) (2000). Disposable retired pay includes pre-tax gross retired pay, minus amounts that: (1) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (2) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under Title 5 or Title 38; (3) in the case of a member entitled to retired pay under chapter 61 of this title are equal to the amount of retired pay of the member under that chapter computed under the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); or (4) are deducted because of an election under chapter 73 of this title [10 USC § 1431 et. seq.] to provide an annuity to a spouse or former spouse to whom a payment of a portion of such member's retired or retainer pay is being made pursuant to a court order under this section. Id.
101. Disposable pay for divorces on or after 5 February 1991 is figured pre-income tax. See 1991 Defense Authorization Act, Pub. L. 102-484. See THOLE & AULT, supra note 4, at 195.
102. Until it was repealed in 1999, the Dual Compensation Act, 5 U.S.C. § 5532(b) (1994) required retired officers who were employed in the federal government to waive a portion of their retired pay. See Bruce D. Callander, New Rules on Dual Compensation, A.F. MAG., Jan. 2000 (noting that the Dual Compensation Act was repealed by the Fiscal Year 2000 Defense Authorization Act, signed by President Clinton on 5 Oct. 1999), available at http://www.afa.org/magazine/toc/01cont00.html.
103. Disability pay may be awarded to a member when he is so disabled that he cannot perform his duties. See 10 U.S.C. § 1212; see also R. ROBERTS, THE VETERANS GUIDE TO BENEFITS 129-64 (1989). Once the VA determines that the service member has a qualifying amount of service, he may be placed on the disability retired list and begin receiving disability retired pay. 10 U.S.C. § 1221. Service members may collect disability retirement pay when they have a permanent disability of at least thirty percent, which renders the service members unfit to perform assigned duties and has either served at least eight years on active duty or was disabled while performing active duty. See 10 U.S.C. § 1201(b).
104. 38 U.S.C. § 110 (2000).
105. Id. § 5301. The relevant part of this section reads: Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent authorized by law . . . shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. Id. § 5301(a) (emphasis added). A statutory exemption exists for child support and alimony, but not for awards of military retirement as property. See Practice Note, Uniformed Services Former Spouses' Protection Act and Veterans' Disability and Dual Compensation Act Awards, ARMY LAW. Feb. 1998, at 31. The purpose of a waiver provision is to permit a retiree to receive retired pay and veterans' benefits, not to exceed the full rate of retired pay, without terminating the status that affords the right to either benefit.
106. Disability pay is nontaxable to the member, and it is protected from certain creditors. See 38 U.S.C. § 5301.
107. 490 U.S. 581 (1989).
108. 10 U.S.C. § 1408(c)(1) (2000).
109. The court found that, in light of § 1408(a)(4)(B)'s limiting language as to such waived pay, the plain and precise language established that § 1408(c)(1) granted state courts the authority to treat only disposable retired pay, not total retired pay, as community property. See also JA 274, supra note 14, at 3.
110. When discussing the issue of disability pay and retired pay, courts cite to the USFSPA and Mansell as precedent for non-divisibility of disability pay. Issues surrounding disposable pay and disability pay are found more often than any other issues relating to the USFSPA, based on an electronic search of LEXIS.
111. Robinson v. Robinson, 647 So. 2d 160, 161 (Fla. Dist. Ct. App. 1994) (holding that military disability benefits are not subject to distribution to a former spouse; a former wife has no "continuing special equity" interest in a former husband's military disability benefits).
112. See infra Section VI.C discussing the current interpretation of the USFSPA and circumventing the Mansell decision.
113. See generally Kuenzli, supra note 32, at 29-31 (providing a detailed description of "direct payment" and its limitations).
114. 10 U.S.C. § 1408(d) (2000); 32 C.F.R. § 63.6(a) (2000) (explaining eligibility of a former spouse for direct pay of property, child support, or alimony). For all direct-pay orders there must be: (a) a final decree of divorce, dissolution, legal separation, or court approval of a property settlement agreement; and (b) an application for direct payment. 32 C.F.R. § 63.6(b) (a former spouse shall deliver to the designated agent of the service a signed DD Form 2293, Request for Former Spouse Payments from Retired Pay).
115. The criteria is commonly known as the "ten-year overlap" requirement. 10 U.S.C. § 1408(d)(2); 32 C F.R. § 63.6(a)(2). Further, the court order must provide for pay-return to court for a garnishment order. See DEP'T OF DEFENSE, FINANCIAL MANAGEMENT REG., Military Pay Policy and Procedure - Retired Pay, ch. 29 (Sept 1999), cited in Kuenzli, supra note 32, at 29.
116. 10 U.S.C. § 1408(d)(1); 32 C.F.R. § 63.6(a)(2).
117. 10 U.S.C. § 1408(e)(1). This section of the USFSPA also places a limit on how much retired pay must be paid to satisfy judgments awarding a share of military retired pay as property. Single or multiple judgments awarding military retired pay as property are considered to be fully satisfied by payments that the total fifty percent of disposable retired pay. But see Blissit v. Blissit, 702 N.E.2d 945 (Ohio Ct. App. 1997) (holding that despite the fifty percent limit on award of disposable retired pay, the statue does not limit the amount which a service member may be ordered to pay for child support or alimony, it merely limits the extent to which the government will make such payments directly to the former spouse). A former service member can be ordered to pay child support or alimony from a source other than retired pay.
118. 32 C.F.R § 63.6(e)(1)(ii).
119. See JA 274, supra note 14, at 7. Direct payments of retired pay received from DFAS by the former spouse are subject to federal income tax withholding. Separate tax forms are issued to the retiree and the former spouse.
120. Act of Oct. 23, 1992, Pub. L. 102-484, 106 Stat. 2426 (adding section to address the "benefits for dependents who are victims of abuse by members losing right to retired pay").
121. See Kuenzli, supra note 32, at 42-44 (describing the USFSPA provisions for victims of domestic abuse).
122. 10 U.S.C. § 1408(h) (2000).
123. Benefits include the disposable retired pay that the service member would have received if retired upon date eligible, PX privileges, commissary privileges, medical, dental, and legal assistance. See JA 274, supra note 14, at 10. These benefits terminate upon remarriage, but can be revived by divorce, annulment, or death of the subsequent spouse. Id. at 11.
124. 10 U.S.C. § 1408(h)(2) provides that a spouse or former spouse must be the "victim of the abuse and married to the member or former member at the time of that abuse; or a natural or adopted parent of dependent child of the member or former member who was the victim of the abuse."
125. Id. 1408(h). See JA 274, supra note 14, at 10. To qualify, a former spouse must have a court order awarding as property settlement a portion of disposable retired pay. The service member must be eligible by years for retirement but loses right to retire due to misconduct involving dependent abuse. The date for determining the years of service is the date of final action by the convening authority (if court-martial) or approval authority (if separation action). These provisions do not apply to early retirement programs.
126. 10 U.S.C. § 1408(h)(7)(A).
127. Kuenzli, supra note 32, at 42. See Act of Oct. 23, 1992, Pub. L. 102-484, 106 Stat. 2426 (adding section to address the "benefits for dependents who are victims of abuse by members losing right to retired pay").
128. See E-mail from Neal W. Nelson, Deputy Assistant General Counsel, Garnishment Operations, Defense Finance and Accounting Service, to Major Mary J. Bradley (Feb. 15, 2001) [hereinafter DFAS E-mail] (on file with author) (providing statistics on USFSPA payments as of October 2000).
129. See generally WILLICK, supra note 7, at 140-61 (providing history of the SBP and USFSPA interaction and an overview of the benefits prequisites of the SBP); LIEUTENANT COLONEL (RETIRED) EDWARD S. GRYCZYNSK, ET AL., SBP MADE EASY: THE SURVIVOR BENEFIT PLAN (1998) (providing a complete discussion of SBP).
130. Service members who are retirement eligible but remain on active duty are automatically enrolled in SBP. Dependents of service members who die on active duty automatically receive an SBP annuity. The qualifying dependents are spouse and children. See GRYCZYNSKI ET AL., supra note 125, at 6 (describing SBP while on active duty;) WILLICK, supra note 7, at 151 (noting that under certain circumstances former spouses can also be beneficiaries of the SBP when the service member dies on active duty). See also THOLE & AULT, supra note 4, at 149-60.
131. 10 U.S.C. §§ 1447-60.
132. Id. § 1448(a)(2). The spouse must consent if the service member: elects not to particiapte in the SBP, elects an annuity for that spouse at less
133. Problems can arise when the service member is divorced after retirement and fails to reclassify the spouse as the "former spouse." See Section V.J.3 (discussing problems with the one-year deemed election rule.)
134. See Pub. L. No. 97-252 §§ 1003(b)(1), 100(c), 96 Stat. 718 (1982) codified at 10 U.S.C. § 1447 (designing the former spouses beneficiaries to the SBP.)
135. This was a change from the original USFSPA. See JA 274, supra note 14, at 13. Even if a court order requires that the service member elect the former spouse as beneficiary of the SBP, the election is not automatic. Once a timely request is made, the finance center will flag the service member's records. When the member retires, the former spouse will be designated as an SBP beneficiary.
136. 10 U.S.C. § 1450(f)(3). One confusing issue is, when does the one year begin? The service member must make the election "'within one year after the date of the decree of divorce, dissolution or annulment' whereas the former spouse must make the request 'within one year of the date of the court order or filing involved.'" WILLICK, supra note 7, at 154 (quoting 10 U.S.C. § 1448(b)(3)(A)).
137. See Dugan v. Childers, 539 S.E.2d 723 (Va. 2001) (holding that a former spouse was not entitled to SBP payments because she failed to file the deemed election paperwork within one year, despite the former service member's civil court contempt conviction for failing to arrange the court-ordered SBP annuity). See generally WILLICK, supra note 7, at 152-55 (providing information about the one-year deemed election rule).
138. See GRYCZYNSKI ET AL., supra note 125, at 4 (explaining designation of current wife as new beneficiary). See also WILLICK, supra note 7, at 150 (noting that the service member must wait at least one year to designate a current wife as the beneficiary).
139. Other benefits include use of morale, welfare, and recreation (MWR) facilities, clubs, libraries, chapels, military golf courses, legal assistance, casualty assistance, and other benefits typically entitled to a military identification card holder. See 10 U.S.C. §§ 1062, 1065, 1072; WILLICK, supra note 7, at 163.
140. See generally WILLICK, supra note 7, at 162-63.
141. 10 U.S.C. § 1062. Authorizes commisionary and exchange priviledges and care in military medical facilities or under the Civilian Health and Medical Program (CHAMPUS) for unremarried former spouses who were married for at least twenty years during active duty service, if divorced after 1 February 1983. "[A]n unremarried former spouse . . . is entitled to commissary and post exchange priviledges of the same extent and on the same basis as the surviving spouse of the retired member of the uniformed services". Id. Under this section, unremarried means, "unremarried" for these benefits and a termination of a subsequent marriage does revive them. For these benefits, the date of divorce is irrevelant.
142. See WILLICK, supra note 7, at 163 (explaining how a former spouse can obtain a military identification card.)
143. See 10 U.S.C. §§ 2484-2486.
144. See genearally WILLICK, supra note, 7, ch. 6 (providing the history and an overview of the medical benefits; explaining the requirements to receive medical benefits.)
145. 10 U.S.C. §§ 1072, 1078, 1086. See JA 274, supra note 14, at 11. See also U.S. DEP'T OF ARMY, REG. 40-3, MEDICAL DENTAL, AND VETERINARY CARE (30 July 1999) (allowing a service secretary to authorize medical care for individuals who are not eligible by law).
146. The full military health care program includes CHAMPUS coverage (to age sixty two) and in-patient and out-patient care at military treatment facilities. To receive full medical benefits, the former spouse must be an unremarried 20/20/20 spouse. A termination of a subsequent marriage by divorce or death of the second spouse does not revive health care benefits, but an annulment does. Further, the former spouse cannot be enrolled in an employer-sponsored health insurance plan. See JA 274, supra note 14, at 12.
147. The transitional health care program includes full coverage for one year after the divorce, with the possibility of limited coverage for an additional year. To receive transitional health care, the former spouse must be a 20/20/15 spouse and unremarried. A termination of a subsequent marriage by divorce or death of the second spouse does not revive health care benefits, but an annulment does. Additionally, the former spouse must not be enrolled in an employer-sponsored health insurance plan. To qualify for the second year of limited coverage, the spouse must have enrolled in the DOD Continued Health Care Benefit Program (CHCBP). See JA 274, supra note 14, at 12.
148. The DOD Continued Health Care Benefit Program (CHCBP) insurance plan is available to anyone who loses entitlement to military health care (former spouses, non-career soldiers and their family members, etc.). See JA 274, supra note 14, at 12. This premium-based temporary health care coverage program is designed to mirror the benefits offered under the basic CHAMPUS program. See id. (detailing the concept of CHCBP). This plan provides benefits for specific period, usually eighteen to thirty-six months, to certain unremarried former spouses and emancipated children who enroll and pay quarterly premiums. Eligible individuals must enroll in CHCBP within sixty days from when they lose eligibility for military health care. Id.
149. The Medicare exception depends on specific personal factors. Any former spouse who loses medical benefits because of Medicare should seek legal assistance to ensure that the benefits were properly ended.
150. See Office of the Secretary of Defense, Retirement Choice for Those Who Entered after July 1, 1986, at http://pay2000.dtic.mil (last visited Mar. 2, 2001) [hereinafter REDUX Information] (explaining the Career Status Bonus or "REDUX" retirement plan). Under this plan, when service members who entered after 1 July 1986 reach their fifteen-146. (continued) year mark, they have the option of converting to the pre-1986 retirement plan or keeping the new plan and accepting a $30,000 bonus, which carries a commitment to remain on active duty until the twenty-year point. Because of "bonus" payment while on active duty, these payments can be analogized to enlistment bonuses and judge advocate continuation pay.
151. See 10 U.S.C. § 1408 (defining the parameters of the USFSPA to include division of retired or retainer pay only). See also Kuenzli, supra note 32, at 34-38 (describing how courts treat separation incentives).
152. See discussion supra note 146.
153. 10 U.S.C. § 1175.
154. Id. § 1174a.
155. See Lykins v. Lykins, 34 S.W.3d 816 (Ky. Ct. App. 2000) (holding that payments under the VSI were marital property and therefore the former spouse could be awarded a share of the payments); Marsh v. Marsh, 973 P.2d 988 (Ct. App. Utah 1999) (holding that the separation benefit received by the service member was divisible and property of the marriage beacuse it was equivalent to an advance on his retirement pay); Marsh v. Wallace, 924 S.W.2d 423 (Tex. Ct. App. 1996) (holding that a lump sum SSB payment was divisible and granting the former spouse the same percentage of the SSB she would have received of retirement pay). The Marsh court found that the SSB was "in the nature of retirement pay, compensating him now for the retirements benefits he would have received in the future." Id. See also Kulscar v. Kulscar, 896 P.2d 1206 (Okla. Ct. App. 1995); Blair v. Blair, 894 P.2d 958 (Mont. 1995); Kelson v. Kelson, 675 So. 2d 1370 (Fla. 1996) (holding that VSI payments were not covered by the USFSPA, but finding that as a practical matter VSI payments are the functional equivalent of the retired pay in which the former spouse has an interest); In re Marriage of Crawford, 884 P.2d 210 (Ariz. 1994); In re Marriage of Babauta, 66 Cal. App. 4th 784 (1998) (holding that VSI pay is divisible).
156. Mackey v. Mackey, No. 20010, 2001 Ohio App. LEXIS 98 (Ohio Ct. App. Jan. 17, 2001). In Mackey, a man who received a VSI payment upon leaving the Air Force after fourteen years of service was not required to divide the payment upon his divorce. The court distinguished the VSI payment from a pension plan because the payment was made after divorce.
157. McClure v. McClure, 647 N.E.2d 832, 841 (1994). Other courts, however, state that an employer's motivation for the payment of benefits and an employee's reason for accepting them are irrelevant considerations in characterizing employment benefits. See In re Lehman, 955 P.2d 451 (Cal. Rptr. 1998), cited in Babauta, 78 Cal. Rptr. at 283.
158. See supra Section II.C.
159. See discussion supra note 9.
160. See THOLE & AULT, supra note 4, at 28
161. Lee Borden, Divorce Info, Divorce Statistics, at http://www.divorceinfo.com/ statistics.htm (last visited Apr. 2, 2001)
162. A search of the Internet revealed over fifty websites for former service members, mostly authored by individuals or unregistered organizations. See Alliance Against the USFSPA Law (AAUL), Home Page, at http://www.usfspa.com (last visited Jan 22, 2001) [hereinafter AAUL Homepage] (providing this organization's thoughts on the USFSPA, sample letters to Congress, USFSPA horror stories, and plans of attacking the problem); Gordon Tatro, Master Sergeant (Retired), The Military No-Fault Divorce and USFPA Law, at http://www.seacoast.com/∼gordon/ (last visited Jan. 22, 2001) (compiling lengthy links, forums, chats, horror stories, and AAUL information); Terry Snyder, Wake Up Congress!! Reform the USFSPA NOW!, at http://www.angelfire.com/ca2/EXTORT/index.html (last visited Jan 2001); Don Hollar, If they had only known . . . , at http://www.geocities.com/Athens/Atlantis/2070/index.html (last visited Jan. 22, 2001) (providing an individual's horror story with links to other web sites; this site is interesting in that the home page has a photo of the Viet Nam Memorial in Washington, D.C., with the letters USFSPA in bright red cross it); John Verbrugt, "Betrayal," at http://www.members.nbci.com/USFSPA (last visited Jan. 22, 2001) (providing an individual's horror story and links to the AAUL sites). Some of these hostile feelings are found even on the private organization web sites. One example is a letter to a congressmen reprinted on the American Retirees Association (ARA) web site. This letter includes the following quote: This shameful and cowardly act required "VOODOO" legislation in order to enact an unconstitutional "EX POST FACTO" law, that gave "PROPERTY RIGHTS" to our military retired pay to our ex-spouse, when we do not even have a property right ot this pay ourselves, and it in effect created a "NEW ENTITLEMENT" by which an ex-spouse earns "LIFETIME PROPERTY RIGHTS" to our military retired pay for her "Valuable Service" of even a very few years, when it requires the service member at least 20 years of service in order to earn retired pay. Letter from Don Holland to The Honorable Robert C. Byrd (Mar. 14, 1998), reprinted in American Retirees Association, Views from the Charthouse, at http://www.americanretirees.com/charths.htm (last visited Jan. 9, 2001) [hereinafter ARA Views from the Charthouse].
163. See, e.g., American Retirees Association, Home Page, at http://www.american retirees.com (last visited Feb. 9, 2001); Fleet Reserve Association (FRA), Home Page, at http://www.fra.org (last visited Jan. 25, 2001) [hereinafter FRA Home Page]; Women in Search of Equity, Home Page, at http://members-proxy-2.mmbrprxy.home.net/skays/wise/ (last visited Jan. 23, 2001) [hereinafter WISE Home Page] (WISE is an association formed by women who support the rights of service members in divorce and who are committed to equitable reform of the "[USFSPA].").
164. See, e.g., American Retirees Association, Home Page, at http://www.american retirees.com (last visited Feb. 9, 2001); Fleet Reserve Association (FRA), Home Page, at http://www.fra.org (last visited Jan. 25, 2001) [hereinafter FRA Home Page]; Women in Search of Equity, Home Page, at http://members-proxy-2.mmbrprxy.home.net/skays/wise/ (last visited Jan. 23, 2001) [hereinafter WISE Home Page] (WISE is an association formed by women who support the rights of service members in divorce and who are committed to equitable reform of the "[USFSPA].").
165. See, e.g., American Retirees Association, Home Page, at http://www.american retirees.com (last visited Feb. 9, 2001); Fleet Reserve Association (FRA), Home Page, at http://www.fra.org (last visited Jan. 25, 2001) [hereinafter FRA Home Page]; Women in Search of Equity, Home Page, at http://members-proxy-2.mmbrprxy.home.net/skays/wise/ (last visited Jan. 23, 2001) [hereinafter WISE Home Page] (WISE is an association formed by women who support the rights of service members in divorce and who are committed to equitable reform of the "[USFSPA].").
166. See, e.g., American Retirees Association, Home Page, at http://www.american retirees.com (last visited Feb. 9, 2001); Fleet Reserve Association (FRA), Home Page, at http://www.fra.org (last visited Jan. 25, 2001) [hereinafter FRA Home Page]; Women in Search of Equity, Home Page, at http://members-proxy-2.mmbrprxy.home.net/skays/wise/ (last visited Jan. 23, 2001) [hereinafter WISE Home Page] (WISE is an association formed by women who support the rights of service members in divorce and who are committed to equitable reform of the "[USFSPA].").
167. Since the USFSPA was proposed, the primary reason that military personnel have so vigorously criticized the USFSPA is their emotional and financial attachment to their military retirement pay. Kuenzli, supra note 32, at 8-9, n.65 (referencing FLORENCE W. KASLOW & RICHARD I. RIDENOUR, THE MILITARY FAMILY 217-25 (1984); K.C. JACOBSEN, RETIRING PROM MILITARY SERVICE 222-23 (1990)). See S. REP. NO. 97-502, at 50 (1982), reprinted in 1982 U.S.C.C.A.N. 1596, 1633. Military retired or retainer pay is an integral part of the military compensation system. Many, if not most, career decisions are made based on individual's perceptions of the stability, reliability, and integrity of the retirement system. Most of these groups suggested a ten-year minimum for the duration of the marriage in order for distribution of retirement pay to the former spouse. Id. at 43, reprinted in 1982 U.S.C.C.A.N. at 1626-28 (statement of Sen. Denton).
168. Since the USFSPA was proposed, the primary reason that military personnel have so vigorously criticized the USFSPA is their emotional and financial attachment to their military retirement pay. Kuenzli, supra note 32, at 8-9, n.65 (referencing FLORENCE W. KASLOW & RICHARD I. RIDENOUR, THE MILITARY FAMILY 217-25 (1984); K.C. JACOBSEN, RETIRING PROM MILITARY SERVICE 222-23 (1990)). See S. REP. NO. 97-502, at 50 (1982), reprinted in 1982 U.S.C.C.A.N. 1596, 1633. Military retired or retainer pay is an integral part of the military compensation system. Many, if not most, career decisions are made based on individual's perceptions of the stability, reliability, and integrity of the retirement system. Most of these groups suggested a ten-year minimum for the duration of the marriage in order for distribution of retirement pay to the former spouse. Id. at 43, reprinted in 1982 U.S.C.C.A.N. at 1626-28 (statement of Sen. Denton).
169. Since the USFSPA was proposed, the primary reason that military personnel have so vigorously criticized the USFSPA is their emotional and financial attachment to their military retirement pay. Kuenzli, supra note 32, at 8-9, n.65 (referencing FLORENCE W. KASLOW & RICHARD I. RIDENOUR, THE MILITARY FAMILY 217-25 (1984); K.C. JACOBSEN, RETIRING PROM MILITARY SERVICE 222-23 (1990)). See S. REP. NO. 97-502, at 50 (1982), reprinted in 1982 U.S.C.C.A.N. 1596, 1633. Military retired or retainer pay is an integral part of the military compensation system. Many, if not most, career decisions are made based on individual's perceptions of the stability, reliability, and integrity of the retirement system. Most of these groups suggested a ten-year minimum for the duration of the marriage in order for distribution of retirement pay to the former spouse. Id. at 43, reprinted in 1982 U.S.C.C.A.N. at 1626-28 (statement of Sen. Denton).
170. See Fleet Reserve Association, Letter Sent to Members of the House of Representatives Who Have Not Cosponsored H.R. 72, at http://www.fra.org (last visited Jan. 19, 2001); AAUL Homepage, supra note 158 (providing fourteen "samples and inspirations" for a letter writing campaign); WISE Home Page, supra note 159. WRITE, WRITE, WRITE!!!! We can't emphasize this enough. You must contact your Congressman, in some form or another, if he/she is going to understand the full ramifications and impact the USFSPA has had, and will continue to have, on not only military retirees and their families, but armed forces morale and retention. They must also fully understand the clear facts of USFSPA reform and what it will and will not do. We need to prove to our members of Congress that military retired pay is not a pension and should not be compared to civilian retirement/pension plans of ANY KIND.
171. See AAUL, Military Betrayed Horror Stories, at http://www.militarybetrayed.com (last visited Nov. 16, 2000). One of the well-known USFSPA horror stories is that of Colonel Bob Stirm, known for the heart-wrenching photo depicting his return from POW camp into the arms of his family. Colonel Stirm was captured as a POW and sent to a North Vietnam POW camp in the Fall of 1967. He was repatriated to the U.S. in 1973. Shortly after returning home, he was served with divorce papers. According to the papers, the court declared that the "date of seoaration" from the spouse was 1 April 1970, during a time when he was still a POW. The former spouse did not have to repay any pay and allowances she received and spent after the "date of separation." She was entitled to his accrued leave pay; and moneys he received under the War Crimes Act for inhumane treatment. The former spouse was also awarded the home, car, 42.7% of his military retired pay, child support, and spousal support (even though the former spouse had numerous open affairs during the member's incarceration in a POW camp and [married] the attorney who prepared the divorce action on the former spouses' behalf). Id. See also Gordon Tatro, USFSPA Horror Stories, at http://www.seacost.com./∼gordont/ members.htm (last visited Feb. 5, 2001) (providing a forum for individuals to tell their USFSPA stories). In 1990 I moved out of my home in Tucson AZ after 18 years of being married. I had retired with 21 years and 9 months in the USAF. After which my wife's boyfriend moved in. She wanted a divorce and that was that. I moved to a studio apartment. On the divorce decree she got the house and everything with it. She got custody of all three kids. I was suppose [sic] to have dental and medical insurance for the kids. Out of 1100.00 a month she gets about 565.00 a month and then received the other half of the pension for child support. Plus I was suppose to send another 250.00 to the court for the rest of the child support money. This left me a big fat zero to live on. . . . The only reason I did not make the street was because the apartment manager was a nice lady and took pity on me and waited until I went back to work and could pay the rent.
172. Id. Before this court order, Goad had challenged, in various state and federal courts, the payment of a portion of his retired pay to his former spouse. After the divorce court originally ordered payment of the retired pay to his former spouse, Goad refused to pay and was imprisoned for contempt. Id. at *1. In an earlier and separate appeal, the Fifth Circuit noted that it was the sixth lawsuit relating to Goad's military benefits. Goad v. Rollins, 921 F.2d 69, 70 (5th Cir. 1991). That suit was also dismissed as being "patently frivolous." Goad had also appealed to the U.S. District Court for the Southern District of Texas. Goad v. United States, 661 F. Supp. 1073 (S.D. Tex.), affirmed by 837 F.2d 1096 (Fed. Cir. 1987).
173. Goad, 2000 U.S. App. LEXIS 20189 at *3.
174. Goad is not the only former service member barred from filing claims because of a series of frivolous lawsuits. See Chandler v. Chandler, 991 S.W.2d 367 (Tex. Ct. App. 1999) (permanently enjoining a former service member from further litigation concerning the validity of his marriage and subsequent division of his military retired pay).
175. See, e.g., Veterans Legislative Priorities Hearing Before the House Armed Service Comm., 107th Cong. (Mar. 1, 2001) (statement by Charles L. Calkins, National Executive Secretary, Fleet Reserve Association). "[The] USFSPA has become a one-way weapon for far too many ex-spouses and their attorneys to financially bleed our military retirees . . . . The current language in the Act is offensive, inequitable and discriminating to many of our Nation's combat veterans." Id.
176. In the bullets addressing the problems with the USFSPA, the ARA lists: "Members of Congress continue to be intimidated by the feminist voting bloc;" and "Traditional male gallantry fails to produce a large enough number of female victims of the USFSPA to generate a feminist groundswell for a fair and equitable USFSPA." American Retirees Association, USFPA, at www.americanretirees.com/usfspa.htm (last visited Jan. 9, 2001) [hereinafter ARA USFSPA Internet Page] (emphasis in original)
177. Id.
178. Women in Search of Equity (WISE), What is the USFSPA?, at http://members.home.come/skays/ theusfspa.htm (last visited Feb. 6, 2000) [hereinafter WISE USFSPA Internet Page]. Women in Search of Equity contends that awarding a former spouse a share of military retired pay, prior to eligibility of the member, is granting a former spouse a greater right to a lifetime divisible interest in the service member's retired pay than the service member had at time of divorce. Service member eligibility for retirement pay is dependent upon meeting specific requirements, to include twenty creditable years on active duty, which is not the case for a former spouse.
179. Women in Search of Equity (WISE), What is the USFSPA?, at http://members.home.come/skays/ theusfspa.htm (last visited Feb. 6, 2000) [hereinafter WISE USFSPA Internet Page]. Women in Search of Equity contends that awarding a former spouse a share of military retired pay, prior to eligibility of the member, is granting a former spouse a greater right to a lifetime divisible interest in the service member's retired pay than the service member had at time of divorce. Service member eligibility for retirement pay is dependent upon meeting specific requirements, to include twenty creditable years on active duty, which is not the case for a former spouse.
180. ARA USFSPA Internet Page, supra note 168. The ARA's position is also advocated by the executive director, Captain (Retired) Frank W. Ault, U.S. Nayy, in his book Divorce and the Military II. While one chapter is designated as the ARA's position, the entire book is slanted towards the arguments of the former service member. See generally THOLE & AULT supra note 4, ch. 17. Despite its obvious leanings, this book is an excellent resource for both the former service member and the former spouse because it succinctly and effectively provides information about military divorce.
181. The FRA serves active duty, reserve, and retired enlisted personnel of the Navy, Marine Corps, and Coast Guard. See FRA Home Page, supra note 159. The average age of an FRA member is sixty-eight; they are all veterans as three wars. Id. The FRA has 153,000 members. Hearings on the National Defense Budget for FY 2001 Before the House Comm. on Appropriations Subcomm. on Defense, 106th Cong. (May 3, 2000) (statement of Joseph Barnes, Director for Legislative Programs, Fleet Reserve Association). The FRA position on the USFSPA and proposals to amend it is as follows: [T]he [USFSPA] made its way through Congress under suspicious circumstances and has become a one-way weapon used by many former spouses, and their attorneys, to financially bleed their military spouses of outrageous sums. . . . The current statute is offensive. It is not equitable to all it serves, and it is discriminating to many. . . . FRA strongly endorses Messrs. Stump and Norwood's proposal, H.R. 72, and urges all members of this Subcommittee to support its proposed amendments to the USFSPA. The Association believes USFSPA should be as fair to the military retiree veteran as it is for his or her spouse. Hearings on the FY 2001 Department of Veterans Affairs Budget Before the Senate Comm. on Appropriations Subcomm. on VA, HUD and Independent Agencies, 106th Cong. (Apr. 7, 2000) (statement of the Fleet Reserve Association). The same statement was also given to the U.S. House of Representatives on 7 April 2000, but was presented by Master Chief 172. (continued) Terry L. Yanette, U.S. Coast Guard (Retired), National Service Officer of the Veterans Affairs Fleet Reserve Association. The FRA also sponsored a voluntary survey. They received 327 responses from both male and female members of the armed forces, mostly active duty and retired enlisted personnel in pay grades E5 through E9. The survey is available online. See FRA Home Page, supra note 159. The FRA sent the survey, along with a letter, to most members of Congress and requested congressional support for amending the USFSPA.
182. See The Retired Officers Association, Legislative Initiatives, Uniformed Services Former Spouses Protection Act (USFSPA) Reform (Jan. 2001) [hereinafter TROA USFSPA Reform] (detailing TROA's position on the USFSPA), available at http:// www.troa.org/legislative/retirement/usfspa.asp. During the 1998 Hearings on garnishment of veterans' benefits for child support and family obligations, TROA presented a detailed statement of proposals and arguments concerning the USFSPA. See Hearing Before the House Comm. On Veterans ' Affairs Regarding Garnishment of Veterans' Benefits for Child Support and Other Court-Ordered Family Obligations, 105th Cong. (Aug. 5, 1998) [hereinafter 1998 Hearing] (statement of Patrick J. Kusiak, Legal Consultant, The Retired Officers Association).
183. Service members refer to this as the "windfall" benefit. In their opinion, because a former spouse did not contribute to the service member's career after the date of divorce they receive a monetary windfall in the form of a percentage of the service member's future promotions and longevity pay increases. Ending the windfall benefit has been and continues to be one of the main issues of former service members. See THOLE & AULT, supra note 4, at 238-39; WISE USFSPA Internet Page, supra note 170 ("[P]ayments to former military spouses, through the [DFAS], are derived from all post-divorce career advancements and pay increases, allowing former spouses a monetary windfall when the member retires often many years after a divorce."). See also TROA USFSPA Reform, supra note 173 (supporting the award of retired pay based on the service member's years of service and pay grade at the time of divorce and not on the grade and years of service at retirement).
184. An Open Letter to the Assistant Secretary of Defense from Captain (Retired) Frank W. Ault, U.S. Navy, Executive Director of American Retirees Association (Jan. 25, 1999) [hereinafter ARA Position Letter], available at http://www.americanretirees.com/ hotspot.
185. Id.
186. Id. All Army JAG basic and graduate course officers receive classes on the USFSPA. Interview with Major Michael Boehman, Professor of Legal Assistance, at The Judge Advocate General's School, U.S. Army, Charlottesville, Va. (Feb. 12, 2001).
187. H.R. 1983, 107th Cong. (2001). All of the former service members' organizations support all or part of this proposal. See 1998 Hearing, supra note 173 (statement of Patrick J. Kusiak, Legal Consultant to The Retired Officers Association); id. (statement of C.A. "Mack" McKinney, Legislative Counsel for the Fleet Reserve Association); ARA Position Letter, supra note 175; TROA USFSPA Reform, supra note 173 (supporting the termination of USFSPA payments upon remarriage of the former spouse). See also WISE USFSPA Internet Page, supra note 170. Should the former spouse continue to receive a division of the service member's retirement pay after remarriage, inconsistent with the other federal retirement programs? Should a former spouse be entitled to benefit financially from the member's time served after termination of the marital status? WISE emphatically says NO! Id. This provision of House Bill 1983 has failed in previous attempts to make this statutory reform. See, e.g., H.R. 72, 106th Cong. (1999); H.R. 2200, 105th Cong. (1997); H.R. 572, 101st Cong. (1990). See generally THOLE & AULT, supra note 4, at 228.
188. With respect to domestic relations law, the Supreme Court has held that "state interests . . . in the field of family and family-property arrangements . . . should be overridden . . . only where clear and substantial interests of the National Government . . . will suffer major damage if the state law is applied." United States v. Yazell, 382 U.S. 341, 352 (1966). See Dugan v. Childers, 539 S.E.2d 723, 725 (Va. 2001) (holding that federal laws concerning SBP one year deemed election rule preempt the state court contempt holding).
189. In addition to the legal arguments presented in this section, this article mentions a social argument against terminating USFSPA payments upon remarriage. That is, including a remarriage penalty unnecessarily involves the government in the social institution of marriage. In addition to the purely preemption argument, the federal government should not influence whether a citizen marries. If Congress enacts laws that use marriage or remarriage as a trigger for losing a court-ordered entitlement, the federal government will unnecessarily be discouraging marriage. Finally, Congress must consider the effect on individual former spouses if USFSPA payments terminated upon the former spouse's remarriage. If the threat of terminating USFSPA payments upon remarriage existed, it would serve to "continue the pain of divorce as the [military] member would continue to control the life of the former spouse." NMFA Position Letter, supra note 7. When faced with the question of how this proposal would affect them, many former spouses said that they would never remarry, or would be forced to return to court for an award of other property in lieu of retired pay. These opinions came in response to the DOD's call for comments in the Federal Register and the DOD's USFSPA Comment Internet site. Department of Defense, Comments for the Federal Former Spouses Protection Laws Review, at http://dticaw.dtic.mil/ prhome/comments.html (last visited Mar. 30, 2001). See E-mail from Mary Ellen Hines to Lieutenant Colonel Thomas K. Emswiler (Feb. 22, 1999) ("I have not remarried and now will never remarry due to the concern that this or subsequent legislation would cause the 180. (continued) loss of my share of the pension with devastating financial effect."); E-mail from Carol Peterson to Lieutenant Colonel Thomas K. Emswiler (Mar. 2, 1999) ("If the USFSPA was changed, I would seriously consider divorcing my current husband and just living with him so that I could keep the retired pay benefits - I need this money to live on because my current salary as a teacher is low and I never had a vested pension in one place."); Elaine Motyl to Lieutenant Colonel Thomas K. Emswiler (Mar. 30, 1999) [hereinafter Motyl E-mail] ("Many of the remarried former spouses like myself will go back to court to acquire from their former husband's other assets [that] equal financial compensation that was legally awarded to them at the time of the divorce.").
190. See supra note 179 (explaining federal preemption of state domestic relations law).
191. One practitioner noted that his service member clients could not believe that they were treated the same by the state court as any other divorcing party was treated; they were sure that they were being treated differently. "Each state makes its decision on how pensions will be divided. The same rules apply to everybody, whether they work for the post office, the FAA, Lucent Technologies, the Teamsters' Union or as a school teacher." Tom Philpott, Pentagon Report on Ex-Spouse Law Crawls Toward Completion, NEWPORT NEWS DAILY PRESS, July 14, 2000 (quoting Edward C. Schilling, a retired Air Force colonel and lawyer in Aurora, Colorado). When military retiree clients hear this, he said, "they are dumbfounded. They don't believe I'm telling the truth because they've gotten the idea that the military is picked on. But the fact is, if you have a U.S. senator divorcing in one courtroom and an Air Force colonel divorcing in the next, the law gives the colonel more protection." Some of the extra protection, Schilling said, included the law's definition of "disposable" retired pay and its 50 percent limit on retired pay that cannot be divided as property, even when multiple ex-spouses are involved. Id. (quoting Edward C. Schilling, a retired Air Force colonel and lawyer from Aurora, Colorado).
192. 24 AM. JUR. 2D Divorce and Separation §§ 477-606 (2000).
193. 10 U.S.C. § 1408(c) (2000).
194. See Position Paper, Ex-Partners of Servicemen(women) for Equality (EX-POSE), Opposition to the Proposed Legislation H.R. 72 (n.d.) (on file with author) [hereinafter EX-POSE Position Paper]; National Military Family Association, NMFA Issues and Actions for 2001, at 2 (Dec. 2000) [hereinafter NMFA Issues for 2001], available at http:// www.nmfa.org/FactSheets/Issues2001.pdf; Telephonic Interview with Margaret Hallgren, President, National Military Family Association, Inc. (Jan. 19, 2001) [Hallgren Interview] (Hallgren expects to testify during hearings on this and other USFSPA issues before the next Congress); Doris Mozley, Committee for Justice and Equality for the Military Wife, Military Divorces Should Be Fair, Too, NAVY TIMES (Jan. 24, 2000), reprinted in ARA Views from the Charthouse, supra note 158. See also 1998 Hearing, supra note 173 (testimony of Marshal S. Willick, American Bar Association).
195. See Position Paper, Ex-Partners of Servicemen(women) for Equality (EX-POSE), Opposition to the Proposed Legislation H.R. 72 (n.d.) (on file with author) [hereinafter EX-POSE Position Paper]; National Military Family Association, NMFA Issues and Actions for 2001, at 2 (Dec. 2000) [hereinafter NMFA Issues for 2001], available at http:// www.nmfa.org/FactSheets/Issues2001.pdf; Telephonic Interview with Margaret Hallgren, President, National Military Family Association, Inc. (Jan. 19, 2001) [Hallgren Interview] (Hallgren expects to testify during hearings on this and other USFSPA issues before the next Congress); Doris Mozley, Committee for Justice and Equality for the Military Wife, Military Divorces Should Be Fair, Too, NAVY TIMES (Jan. 24, 2000), reprinted in ARA Views from the Charthouse, supra note 158. See also 1998 Hearing, supra note 173 (testimony of Marshal S. Willick, American Bar Association).
196. See Position Paper, Ex-Partners of Servicemen(women) for Equality (EX-POSE), Opposition to the Proposed Legislation H.R. 72 (n.d.) (on file with author) [hereinafter EX-POSE Position Paper]; National Military Family Association, NMFA Issues and Actions for 2001, at 2 (Dec. 2000) [hereinafter NMFA Issues for 2001], available at http:// www.nmfa.org/FactSheets/Issues2001.pdf; Telephonic Interview with Margaret Hallgren, President, National Military Family Association, Inc. (Jan. 19, 2001) [Hallgren Interview] (Hallgren expects to testify during hearings on this and other USFSPA issues before the next Congress); Doris Mozley, Committee for Justice and Equality for the Military Wife, Military Divorces Should Be Fair, Too, NAVY TIMES (Jan. 24, 2000), reprinted in ARA Views from the Charthouse, supra note 158. See also 1998 Hearing, supra note 173 (testimony of Marshal S. Willick, American Bar Association).
197. See Position Paper, Ex-Partners of Servicemen(women) for Equality (EX-POSE), Opposition to the Proposed Legislation H.R. 72 (n.d.) (on file with author) [hereinafter EX-POSE Position Paper]; National Military Family Association, NMFA Issues and Actions for 2001, at 2 (Dec. 2000) [hereinafter NMFA Issues for 2001], available at http:// www.nmfa.org/FactSheets/Issues2001.pdf; Telephonic Interview with Margaret Hallgren, President, National Military Family Association, Inc. (Jan. 19, 2001) [Hallgren Interview] (Hallgren expects to testify during hearings on this and other USFSPA issues before the next Congress); Doris Mozley, Committee for Justice and Equality for the Military Wife, Military Divorces Should Be Fair, Too, NAVY TIMES (Jan. 24, 2000), reprinted in ARA Views from the Charthouse, supra note 158. See also 1998 Hearing, supra note 173 (testimony of Marshal S. Willick, American Bar Association).
198. Former service members' organizations vehemently argue this point. See ARA Position Letter, supra note 175; WISE USFSPA Internet Page, supra note 170. In McCarty, the Supreme Court agreed that retired pay was reduced pay for reduced service, but did not decide the case on that point. McCarty v. McCarty, 453 U.S. 210, 222 (1981). "[W]e need not decide today whether federal law prohibits a State from characterizing retired pay as deferred compensation, since we agree with appellant's alternative argument . . . ." Id. at 223.
199. See THOLE & AULT, supra note 4, at 34 (listing restrictions on retired military members required to receive retired pay, which are not restrictions on former spouses who receive a property interest in the retired pay); Letter to Editor from Frank Ault, Executive Director of American Retirees Association, NAVY TIMES, Jan. 19, 2000 [hereinafter Ault Letter], available at ARA Views from the Charthouse, supra note 158.
200. Pub. L. 96-513, § 106, 94 Stat. 2868, cited in McCarty v. McCarty, 453 U.S. 210, 221 (1981).
201. 10 U.S.C. § 802(4) (2000).
202. Service members apparently base their argument on the overturned, lower court decision in Barker. Barker v. Kansas, 815 P.2d 46, 53 (Kan. 1991), reversed by Barker v. Kansas, 503 U.S. 594 (1992). (1) Federal military retirees remain members of the armed forces of the United States after they retire from active duty; they are retired from active duty only; (2) federal military retirees are subject to the Uniform Code of Military Justice (UCMJ) and may be court-martialed for offenses committed after retirement; (3) they are subject to restrictions on civilian employment after retirement; (4) federal military retirees are subject to involuntary recall; (5) federal military retirement benefits are not deferred compensation but current pay for continued readiness to return to duty; and (6) the federal military retirement system is noncontributory and funded by annual appropriations from Congress; thus, all benefits received by military retirees have never been subject to tax.
203. Id. at 599.
204. Id. at 599-600.
205. Id. at 600. The Court also noted that military retired pay was calculated similarly to the state public employee retirement system. Id.
206. United States v. Tyler, 105 U.S. 244 (1882) (holding that officers retired from active military service were entitled to the same percentage increase in pay that a statue had provided for active officers).
207. McCarty v. McCarty, 453 U.S. 210 (1981).
208. Tyler, 105 U.S. at 245-46.
209. McCarty, 453 U.S. at 224 n.16.
210. Barker, 503 U.S. at 603.
211. Id.
212. Id. at 604 (citing 26 U.S.C. § 219(f)(1) and noting that military retired pay is deferred compensation for the purposes of making IRA contributions).
213. The Supreme Court focused on interpreting 4 U.S.C. § 111, which discusses taxation of federal pay.
214. Barker, 503 U.S. at 605.
215. See Fern v. United States, 15 Cl. Ct. 580 (1988), aff'd, 908 F.2d 955 (Fed. Cir. 1990). This suit argued that the USFSPA was unconstitutional based on an impermissible "taking" of property or in the alternative, that USFSPA was an unconstitutional infringement upon the contract between the service member and the United States. See generally WILLICK, supra note 7, at 27-30 (explaining the arguments and holdings in Fern). Only a new argument to the Supreme Court can trump Congress by opining that USFSPA is an unconstitutional law.
216. WISE USFSPA Internet Page, supra note 170. Another invidious aspect of the USFSPA is that the law permits payments to the nonmilitary former spouse for LIFE, whether or not he or she has remarried. This is inconsistent with the former spouses protections for all other federal agencies, to include: - civilian federal employees - US Foreign Service - Central Intelligence Agency - Serviceman's Benefit Program of the [DOD] - The widows' pension benefit program (DIC) of the [DOD] - and the abused military dependents provisions of the USFSPA. Id.
217. Foreign Service Retirement and Disability System, 22 U.S.C. §§ 4068, 4069a(6) (2000); Foreign Service Pension System, 22 U.S.C. § 4071j(a)(1)(B); Intelligence Agency Retirement Act, 50 U.S.C. §§ 224(b), 403 (2000).
218. Emswiler Interview, supra note 8 (relying on information gathered to prepare the DOD Report to Congress Concerning Federal Former Spouse Protection Laws, which has not yet been released).
219. Railroad Retirement System has two "tiers." Tier I benefits terminate upon the remarriage of the former spouse, but can be reinstated in some circumstances. Tier II does not contain a remarriage provision, but one can be supplied by court order. Id.
220. Id.
221. Id.
222. Id.
223. See Motyl E-mail, supra note 180 ("Many of the remarried former spouses like myself will go back to court to acquire from their former husband's other assets the equal financial compensation that was legally awarded to them at the time of the divorce.").
224. See THOLE & AULT, supra note 4, at 23. Retroactivity was extensively litigated because the USFSPA did not prohibit reopening cases, it merely permitted state courts to reconsider judgments in light of marital property and procedural laws without the presence of McCarty.
225. E-mail from Nola J. Morgan to Lieutenant Colonel Thomas K. Emswiler (Mar. 3, 1999) ("I was aghast to learn that your office is planning some changes to the USFSPA that would seriously affect the financial welfare of former spouses, especially elderly women such as myself."). Mrs. Morgan further states: Please do not cut these benefits. This is not a handout but is my fair share of the retirement from the 25 years I devoted to my husband and to the Marine Corps and the additional 13 years we were married after he retired Women who devoted their adult lives to furthering the military should not be left out in the cold in their old age. Id.
226. In his book on military divorce, the ARA executive director states that laws should not be retroactive. For any law within the United States to be truly valid, it must, first, meet the requirements of the Constitution and become effective only from its actual date of passage. It cannot be postdated. To be fair, it must also be universally applied, nondiscriminatory, consistent in its application and equitable in its considerations. See THOLE & AULT, supra note 4, at 52.
227. H.R. 1983, sec. 4., 107th Cong. (2001).
228. See THOLE & AULT, supra note 4, at 16 (noting that because there is no statute of limitations for former spouses to request a property share of retired pay, the service member is left in financial limbo); ARA Position Letter, supra note 175; 1998 Hearing, supra note 173 (statement of Master Gunnery Sergeant (Retired) Benjamin H. Butler, U.S. Marine Corps, National Association For Uniformed Services). Placing limitations on the jurisdiction of courts to reopen divorce cases would allow fair and equitable settlements and both parties could continue their lives without the fear of cases being reopened long after the divorce and as a consequence, affecting the retiree and the standard of living of his/her subsequent spouse. Id. See also TROA USFSPA Reform, supra note 173 (supporting a statute of limitations provision in the USFSPA).
229. ARA Position Letter, supra note 175.
230. 1998 Hearing, supra note 173 (statement of Mrs. Patricia Bruce, National Director, Women in Search of Equity (WISE)). However, especially in community property states, final decree or closure to the property settlement aspect of a divorce may not occur for several years after the divorce occurs. See Mueller v. Walker, 167 Cal. App. 3d 600, 605-06 (Cal. Ct. App. 1985) (holding that where a divorce decree does not mention specific community property, the parties own the property as tenants in common and it may be divided in a separate partition action at any point in the future); Henn v. Henn, 26 Cal. 3d 323, 330-32 (Cal. 1980) (same). See also Casas v. Thompson, 42 Cal. 3d 131, 141 (Cal. 1986) ("Henn implicitly holds . . . that the policy favoring equitable division of marital property outweighs that of stability and finality in the limited context of omitted assets.").
231. 1998 Hearing, supra note 173 (statement of Mrs. Patricia Bruce, National Director, Women in Search of Equity (WISE)).
232. United States v. Yazell, 382 U.S. 341, 352 (1966). See Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (noting the states' paramount role in domestic relations law and refusing to preempt that state law unless "positively required by direct [federal] enactment or "the particular law does major damage" to "clear and substantial" federal interests."). See also Rose v. Rose, 481 U.S. 619, 625 (1987) (holding that VA disability benefits did not conflict with the enforcement of state child support orders even where disability benefits represented a disabled veteran's only source of income and would thus be necessarily used to pay child support).
233. See supra notes 179, 221 (discussing federal preemption).
234. See, e.g., DEL. FAMILY COURT R. 60(b) (providing relief from a final judgment, order, or proceeding); ILL. REV. STAT. 1987, ch. 110, para. 2-141 (providing a two-year statute of limitations governing the modification of divorce judgments); N.M. STAT. ANN. § 37-1-4 (1978) (establishing a four-year statute of limitations that applies to suits to divide personal property in a divorce decree).
235. See, e.g., DEL. FAMILY COURT R. 60(b) (providing relief from a final judgment, order, or proceeding); ILL. REV. STAT. 1987, ch. 110, para. 2-141 (providing a two-year statute of limitations governing the modification of divorce judgments); N.M. STAT. ANN. § 37-1-4 (1978) (establishing a four-year statute of limitations that applies to suits to divide personal property in a divorce decree).
236. Laches is defined as unreasonable delay or negligence in pursuing a right or equitable claim in a way that prejudices the party against whom relief is sought. BLACK'S, supra note 3, at 879. See, e.g., ALASKA CIV. R. 60(b)(6) (motions to modify property distribution must be made within "reasonable time limits"); Lowe v. Lowe, 817 P.2d 453, 457 (Alaska 1991) (holding that four and a half years is not per se unreasonable, but at some point litigation must be brought to an end).
237. In re Marriage of Vanek, 617 N.E.2d 329, 331 (Ill. App. 1993). See, e.g., In re Marriage of Vest, 567 N.E.2d 47, 49 (Ill. App. 1991) (citing Barnes v. Barnes, 743 P.2d 915 (1987), which states that the USFSPA is not intended to restrict state law on the modification of final judgments); Andresen v. Andresen, 564 A.2d 399 (1989) (holding that a petition to reopen a marriage judgment under USFSPA was denied where the petition was filed more than four years after the entry of judgment); In re Marriage of Quintard, 691 S.W.2d 950 (1985) (denying a petition to reopen a judgment pursuant to USFSPA for lack of compliance with state law).
238. In re the Marriage of Vanek, 617 N.E.2d 329 (Ill. App. 1993).
239. See id. See also Dimsdle v. Dimsdle, 1991 Kan. App. LEXIS 692 (Kan. Ct. App. Sept. 13, 1991) (holding that a two-year statute of limitations barred the former wife's suit based in fraud, to receive a portion of her husband's military retired pay that she did not know was divisible at the time of divorce).
240. In the Matter of the Marriage of Pierce, 982 P.2d 995 (Kan. Ct. App. 1999).
241. Id. (citing KAN. STAT. ANN. § 60-260(b)).
242. 985 S.W.2d 912 (Mo. App. 1999).
243. Field's failure to file timely demonstrates the legal professions' misunderstanding of the provisions of the USFSPA.
244. Field, at 919-20. See Porter v. Porter, 542 N.W.2d 448 (S.D. 1996) (holding that a former wife was barred from raising the divisibility of the husband's military retired pay fourteen years after the divorce was final based on the doctrine of laches); Terry v. Lee, 445 S.E.2d 435 (S.C. 1994) (barring suit to divide military retired pay twenty-seven years after the divorce based on a doctrine of laches). But see Raphael v. Raphael, 1990 Del. Fam. Ct. LEXIS 67 (Del. Fam. Ct. May 31, 1990) (holding that seven years was not an unreasonable amount of time for waiting to reopen a divorce decree where the military retired pay was not addressed; the doctrine of laches did not apply because the husband will not be prejudiced as a result of the seven year delay).
245. Walters v. Walters, 220 Cal. App. 3d 1062, 1066 (1990). In Walters, because the court reserved jurisdiction over the retired pay at the time of divorce, the wife was not barred from requesting reinstatement of her share of retired pay even after the statute of limitations on California Civil Code § 5124 passed.
246. A divorce court has jurisdiction to enforce the terms of its own decree. See Ratkowski v. Ratkowski, 769 P.2d 569 (Sup. Ct. Idaho 1989) (referring to IDAHO CODE § 1-1622 (1988)).
247. The argument by former spouses is that a two-year statute of limitations would impose significant hardship on former spouses, especially older women, who have poorly written property settlement agreements. These persons were oftentimes unaware at the time of their divorces that they had a "presumption" to a portion of their ex-spouses' retired pay; in the trauma of divorce proceedings they have signed away this presumption which could make the difference between a respectable life style and poverty. EX-POSE Position Paper, supra note 185.
248. See Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992) (stating that the financial loss to the wife after her share of the retired pay was waived is not insignificant and likely justifies a redistribution of the parties' marital property).
249. See ALASKA STATUTE 25.24.160(a)(4), 170 (1991) (a trial court must "fairly allocate the economic effect of divorce" and one party is entitled to modification of alimony and maintenance under a "change in circumstances"); UTAH CODE ANN. § 30-3-5(3) (1995) (noting that a court has continuing jurisdiction to make subsequent changes to orders for distribution of marital property as is reasonable and necessary, upon a showing that a substantial change in circumstances has occurred since the entry of the divorce decree); Bumgardner v. Bumgardner, 521 So. 2d 668 (La. Ct. App. 1988) (holding that the court retained continuing jurisdiction to partition military retired pay after the divorce); McDonough v. McDonough, 183 Cal. App. 3d 45 (Cal. Ct. App. 1986) (holding that the court had continuing jurisdiction to partition military retired pay. But see Tarvin v. Tarvin, 187 Cal. App. 3d 56 (Cal. Ct. App. 1986) (finding no continuing jurisdiction over a nondomiciliary, nonresident retiree to partition military retired pay after the decree is final). See also Clausen, 931 P.2d at 1257 (vacating a divorce decree and remanding for modification based on a change in circumstances, specifically the husband's waiver of retired pay to receive VA disability). But see Toone v. Toone, 952 P.2d 112 (Utah Ct. App. 1998) (holding that recognition of a new legal right, specifically the USFSPA divisibility of military retired pay, does not constitute a change in circumstances sufficient to reopen a divorce decree).
250. See ALASKA CIVIL R. 60(b)(6) (a party is entitled to modify the final divorce decree under "extraordinary circumstances" based on four factors: (1) the fundamental, underlying assumption of the dissolution agreement has been destroyed; (2) the parties' 238. (continued) property division was poorly thought out; (3) the property division was reached without the benefit of counsel; and (4) the [asset in controversy] was the parties' principal asset). See also Lowe v. Lowe, 817 P.2d 453, 456 (Alaska 1991) ("As this is not an initial adjudication of the parties' property rights [in a military pension], relief may be granted only within the parameters of Civil Rule 60(b).").
251. ARA Position Letter, supra note 174.
252. This program assists enlisted soldiers to become officers.
253. 10 U. S. C. § 1408(c) (2000). "A court may treat disposable retired pay . . . either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." Id. (emphasis added).
254. See, e.g., discussion supra note 23; Mozley, supra note 185.
255. A series of editorials in the San Antonio Express-News demonstrates this animosity. See supra note 23 (providing editorials debating the USFSPA). The animosity between these groups is apparent also in Mozley's article. Mozley, supra note 185. Rather than solely focusing her argument on the legal aspects of property in a divorce, she adds: "Would greed possibly have anything to do with husbands seeking revocation of pension shares upon their ex-wives' remarriage?" Id. Mozley's article constantly refers to former spouses as wives and former service members as husbands. Ault's retort to Mozley's comment about greed continues the banter: "Greed is a term more properly applied to an ex-spouse who is being supported by two marital partners (past and present), especially when the second is a well-heeled individual with no military service." Ault Letter, supra note 187. "[T]o insist on support from two (or more) [marital partners] is an overt manifestation of greed with, perhaps, just a tinge of revenge." Id
256. See NMFA Position Letter, supra note 7. "Spouses . . . are often forced to move just at the time they might be in a position to advance in their career and usually must start at the bottom of the economic ladder at each new duty station." Id. at 1.
257. Discussions with current spouses of military members resulted in a finding that spouses still fulfill an essential role in the military community. While the days of the white-glove teas may be over, spouses assist the military community through other social interaction, communication networks, and support to the service member. See Diane Altenberg & Anne Huffman, Address to The Judge Advocate General's School Wives Club Coffee (Jan. 25, 2001) (noting that spouses are not expected to throw big, organized social events, but are still expected to form a support network). Rather than having a reduced role in the military community, spouses today are expected to do more. "It is harder now because the wife is expected to do it all: have a career, take care of a family, and act as a leader of the military families." This role is essential in today's military service that includes frequent and long-term deployments. See id. Spouses take a more active role in the military community during deployments out of necessity. Mrs. Altenberg and Mrs. Huffman explained that during deployments such as Desert Storm, the spouses work together to provide support and communications; some families actually moved in together; single women helped with other women's children. "Once the active duty forces were gone, you were it - and you needed the whole military family to pitch in." Id. Some of the spouses even assisted in preparing the troops for deployment.
258. This is not to say that individual former spouses or advocates for former spouses do not voice their opinions. In response to the DOD request for input, nearly one thousand former spouses responded via e-mail and letter. Emswiler Interview, supra note 8. Lieutenant Colonel Emswiler was the designee in the on-line request for input on the USFSPA. He acted as the repository of information that DOD requested via the Federal Register. Id. Edward C. Schilling III, a retired Air Force colonel and lawyer in Aurora, Colorado, is known as expert on the USFSPA who advises hundred of attorney and their clients on military divorce and the USFSPA. According to Schilling, the problem with the USFSPA is that the current law allows many former service members to protect their retired pay from divorce settlement division and distribution. For example, former service members can accept VA disability compensation in lieu of retirement pay, thus reducing the amount of disposable retired pay available for division and distribution. See Philpott, supra note 182. Often the disability compensation is for injuries or illnesses unrelated to combat or even military service. Schilling, who was the former head of the Air Force's legal assistance program, state that he sees "an enormous volume of cases involving long-term marriages that end when the husband dumps the wife and kids, and runs off with some young skirt." Id. Schilling did not clarify, however, which party to the marriage was the service member. He most likely implied that the husband was he service member and left his devoted wife who stood by him for years and years of military life and without the USFSPA would not receive her earned share of the military retired pay. This article suggests that the worse scenario would be if the wife was the service member. She would be forced to share her military retired pay with a man who left her and their children.
259. See, e.g., Ex-Partners of Servicement(women) for Equality, Home Page, at http:/ /www.angelfire.com/va/EXPOSE/ (last visited Feb. 5, 2001). Although EX-POSE is an active lobby for former spouses' rights, their website merely provides general information about EX-POSE and how to contact the organization. See 1998 Hearing, supra note 173 (testimony of Virginia Kay Ward, Board Member of Ex-Partners of Servicemen(women) for Equality).
260. The NMFA's logo contains the phrase: "For Thirty Years - The Voice of the Military Family." See National Military Family Association, Home Page, at http:// www.nmfa.org (last visited Feb 20, 2001). The NMFA provides information on the USFSPA law, but does not present a position paper incorporating their position on changes to the USFSPA. The NMFA is part of The Military Coalition, which also includes the FRA. Hallgren Interview, supra note 185 (stating that the members of The Military Coalition work together towards reform, but do not always agree on the issues).
261. NMFA Issues for 2001, supra note 185.
262. The Military Coalition is comprised of thirty-one organizations representing more than 5.5 million members of the uniformed services - active, reserve, retired, survivors, veterans - and their families. See The Military Coalition, Home Page, at http:// www.themilitarycoalition.org (last visited Feb. 12, 2001). Members organizations include TROA, FRA, and NMFA. While the groups advocate different positions on the USFSPA, they work together on other military and veterans issues.
263. The Military Coalition successfully advocated for repealing the Dual Compensation Act. See Bruce D. Callander, New Rules on Dual Compensation, AIR FORCE MAG., Jan. 2000, available at http://www.afa.org/magazine/toc/01cont00.html.
264. See NMFA Position Letter, supra note 7.
265. See id.
266. NMFA Issues for 2001, supra note 185.
267. See NMFA Position Letter, supra note 7.
268. See id.
269. EX-POSE Position Paper, supra note 185 (arguing that making this proposal retroactive would gravely impact the financial security of former spouses; it is patently unjust to award a particular amount of money and to decide at a later date that the money would be allocated differently); Mozley, supra note 185.
270. The NMFA supports this proposal. 1998 Hearing, supra note 173 (statement of Joyce Wessel Raezer, Senior Issues Specialist, The National Military Family Association). See generally THOLE & AULT, supra note 4, at 239-40.
271. According to one commentator (whose opinions tend to favor service members), former spouses groups advocate for additional reform, including a presumptive entitlement to a pro-rata share of military retired pay and an end to the protection of disability pay now embodied in the USFSPA. See THOLE & AULT, supra note 4, at 239-40.
272. During the review of the original USFSPA, military representatives testified "in support of an equitable solution to the problems created by the McCarty decision." S. REP. NO. 97-502, at 7 (1982), reprinted in 1982 U.S.C.C.A.N. 1596, 1601-02.
273. Id. at 7. The DOD did not advocate legislative codification of the McCarty decision, but stated that a legislative reversal of McCarty would have an adverse effect on recruiting and retention and create military personnel assignment problems.
274. H.R. ARMED SERVICES COMM. REP. NO. 101-76 (1990).
275. The DOD report was due on 1 October 1999. See Philpott, supra note 182.
276. In January 2001, the Armed Forces Tax Council recommended specific changes to the USFSPA. Philpott, supra note 182 (discussing the Armed Forces Tax Council proposal to reform the USFSPA). Many of these changes are similar in nature to the proposals in this article. In addition to the Tax Council proposals mentioned elsewhere in this article, the Tax Council recommends amending the USFSPA to allow "Cost of Living Allowances (COLA) for dollar-specific awards." See Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses Protection Act to Allow COLA's for Dollar-Specific Awards (Jan. 2001) (on file with author). The USFSPA does not include language to permit COLA for dollar amount awards. Because this language is not present, most USFSPA awards in divorce orders are expressed in percentages. Id. While this rule limits the flexibility of the parties and the courts in negotiating property settlement agreements, the current system of percentage awards is a main feature of the USFSPA. Courts that determine a specific dollar amount is necessary to "support" a former spouse should be considering alimony, not a property award of retired pay. Percentage awards are ideal if the divorce occurs before retirement and before a disability rating; they are more flexible. Specific dollar amounts can work if the divorce occurs after retirement and after a disability rating, once the exact amount of retired pay is known. The problem with specific dollar amounts is demonstrated by Longanecker v. Longanecker, 782 So. 2d 406 (Fla. Dist. Ct. App. 2001), where the dissolution awarded the former spouse $157.76 monthly from the net disposable retired pay from the husband. Over time, all of his disposable retirement benefits had been converted into disability benefits. Id. at *2.
277. This position is similar to the stated position of the ABA. See ABA Position Letter, supra note 7. "[T]he consistent ABA position has been to allow state divorce law to apply to service members and their spouses, as it does to everyone else, with the goal of avoiding any "special classes" of persons who would be wrongly deprived of, or unjustly enriched with, the fruits of a marriage." Id. at 2.
278. See supra Section III.A (discussing forum shopping).
279. Congress enacted these jurisdiction requirements at the request of DOD. See S. REP. NO. 97-502, at 8-9 (1982), reprinted in 1982 U.S.C.C.A.N. 1555, 1603-04 (expressing DOD's concerns about forum shopping).
280. One commentator noted that Congress created exactly the type of forum shopping it tried to avoid. See WILLICK, supra note 7, at 57. Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act to Eliminate the Jurisdictional Rule (Jan. 2001) (on file with author). "The concern now is not forum shopping; instead it is 'forum avoidance' by the military spouse. DFAS reports that this usually occurs in cases involving members who are retired at the time of divorce." Id.
281. See WILLICK, supra note 7, at 58.
282. See Mark Sullivan, Military Pension Division: The Spouse's Strategy, SILENT PARTNER, available at http.//www.abanet.org/family/military/home.html. See also WILLICK, supra note 7, at 58 (explaining the current forum avoidance problem).
283. Minimum contacts is defined as a nonresident party's forum-state connections, such as business activity or actions foreseeably leading to business activity that are substantial enough to bring the party within the forum-state court's personal jurisdiction without offending traditional notions of fair play and substantial justice. BLACK'S, supra note 3, at 1010. See Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945). Most states have developed minimum contacts tests that are incorporated into "long-arm" statutes. See infra note 276 for a definition of long-arm statutes.
284. This is especially true for the retired service member who is not protected by the Soldiers' and Sailors' Civil Relief Act. Interview with Brigadier General (Retired) Thomas R. Cuthbert in Washington D.C. (2 Feb. 2001) (noting that he is an advocate of keeping the jurisdictional requirement).
285. Soldiers' and Sailors' Civil Relief Act, 50 U.S.C. §§ 501-591 (2000). This law postpones or suspends certain civil obligations; a member's request for stay of proceeding will be granted unless military service does not materially affect the member's ability to defend the action. Id. § 521, cited in WILLICK, supra note 7, at 105 (emphasis in original). See, e.g., Hawkins v. Hawkins, 999 S.W.2d 171 (Tex. Ct. App. 1999) (ruling that a divorce, which included division of military retired pay, should be re-opened when a service member was unable to defend himself because of military service).
286. If the court issued the order while the service member was on active duty and the service member was not represented in court, the court order or other court document must certify that the rights of the service member under the SSCRA were complied with. 32 C.F.R. § 63.6(c)(4) (2000). No reported cases exist where a spouse falsely certified compliance with this section; however, false certification under this section would be grounds for a service member to re-open a divorce.
287. An example of the minimum contacts test is that a party is subject to the jurisdiction of the court if: (1) the nonresident party must purposely do some act or consummate some transaction in the forum state; (2) the cause of action between the parties must arise out of that transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice under the due process clause of the Fourteenth Amendment, bearing in mind the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, and the benefits and protection of the laws of the forum state afforded by the respective parties, and the basic equities of the situation. See Southern v. Glenn, 677 S.W.2d 576, 583 (Tex. 1984).
288. A long-arm statute provides for jurisdiction over a nonresident party who has had contacts with the state where the statute is in effect. BLACK'S, supra note 3, at 953.
289. However, other courts determine the percentage of retired pay based on the pay grade and length of service at the time of divorce. See, e.g, Grier v. Grier, 731 S.W.2d 931 (Tex. 1987). See generally WILLICK, supra note 7, at 120 (detailing enforcement of awards based on particular rank and grade when that status varies from actual retirement).
290. Marital property is that property acquired from the time when a marriage begins until one spouse files for divorce. BLACK'S, supra note 3, at 1233. In equitable-distribution states, the phrase marital property is the rough equivalent of community property. Id. Community property is property owned in common by husband and wife because it was acquired during the marriage by means other than an inheritance or a gift to one spouse, each spouse holding a one-half interest in the property. Id. at 274. Currently, nine states have community property systems: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
291. See S. REP. NO. 97-502, at 7 (1982), reprinted in 1982 U.S.C.C.A.N. 1555, 1601-02.
292. Under the separate property date proposal, some former spouses could successfully argue for division of retired pay based on date of retirement rather than date of separation or divorce if they can show a contribution to the rank eventually attained by the service member.
293. See 1998 Hearing, supra note 173 (testimony of ARA, FRA, and WISE). See THOLE & AULT, supra note 4, at 31.
294. See 1998 Hearing, supra note 173 (testimony of NMFA, EX-POSE, the ABA, and the Committee for Justice and Equality for the Military Wife).
295. See THOLE & AULT, supra note 4, at 31-32; E-mail from Sue Miller to Lieutenant Colonel Thomas K. Emswiler, (May 12, 1999) [hereinafter Miller E-mail] (noting that the income of her military husband's former spouse is triple that of her military husband because of the USFSPA payments). Mrs. Miller also argues that her husband's former wife has an "elevated status" merely because she was the first wife during the military career. "The USFSPA is intent on protecting the wife of my husband's former life, [while] it expresses very little interest in protecting me the wife of my husband's current life." Id.
296. The Armed Forces Tax Council supports a proposal based on pay grade and 284. (continued) length of service at the time of divorce. See Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act to Require Calculation of Benefits Based on Time of Divorce Rather Than Time of Retirement (Jan. 2001) (on file with author). See also Philpott, supra note 182.
297. Criminal cases commonly use the totality of the circumstances test for evidentiary determinations. The test calls for the court to "focus on the entire situation . . . and not any one factor." BLACK'S, supra note 3, at 1498.
298. By considering the reason for the couple's separation, the state court could indirectly consider fault in the marriage. If the couple separated because of one spouse's misconduct, that may confirm the court's decision to use the date of separation as the "separate property date." However, if the reason for the separation was the service member's misconduct, the court may consider pushing the separate property date to a date later in time, such as the date of divorce.
299. A judge makes findings of fact, which are supported by the evidence in the record and used to reach a legal conclusion; the findings of fact are usually presented at the trial or hearing. BLACK'S, supra note 3, at 646.
300. The standard "abuse of discretion" is used when a higher court reviews a trial court's factual or legal decision-making. Typically, an appellate court will find that a trial court abused their discretion if they fail to exercise sound, reasonable, and legal decision-making. Id. at 10.
301. Some courts use "time in service at retirement." For this example, the difference between time in service at vesting and time in service at retirement is irrelevant because the service member had twenty years of service at vesting and at retirement.
302. See supra note 83 for additional examples of current military retired pay division formulas.
303. Information about how to determine the specific dollar amount of retired pay can be found using DEFENSE FINANCE AND ACCOUNTING SERVICE, PREPARING FOR YOUR RETIREMENT ch. 2 (June 2000), available at http://www.dfas.mil/money/retired/PERRET00.pdf. See generally WILLICK, supra note 7, at 2 (providing information and charts to assist in dividing retired pay); THOLE & AULT, supra note 4, at 113-15 (explaining how retired pay in calculated).
304. See infra Section V.G (proposing expanding DFAS direct payment of retired pay).
305. An example of a hypothetical award is: "The former spouse is awarded _ % of the disposable retired pay of the member had the member retired on _ (date - usually the divorce date) at the rank of _ with _ years of creditable service." DFAS E-mail, supra note 124.
306. See id. (acknowledging that this type of award is routinely paid by DFAS provided it complies with the proposed rule to 32 C.F.R. §§ 63.1-63.6 (1995)). While the USFSPA specifically states that the award must be in a percentage or fixed amount, it does not affirmatively reject formulas.
307. The Armed Forces also supports a version of this proposal. Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act to Require Calculation of Benefits Based on Time of Divorce Rather than Time of Retirement (Jan. 2001) (on file with author).
308. Former service members refer to this as the former spouses "windfall." This issue is one of the former spouses groups main fights in the USFSPA battle. See discussion supra Section IV.B.
309. Legislative initiative for Unified Legislation and Budgeting, orginated by the Armed Forces subject: Amend the Uniformed Services Former Spouses' Protection Act to Require Calculation of Benefits Based on Time of Divorce Rather than Time of Retirement (Jan. 2001) (on file with author); see also Philpott, supra note 182.
310. 10 U.S.C. § 1408(a)(4)(B) (2000) (excepting VA disability pay); id. § 1408(a)(4)(C) (excepting DOD disability pay). The difference between VA disability pay and DOD disability pay is the source of the funds and the taxability. See THOLE & AULT, supra note 4, at 32-33 (explaining disability benefits).
311. Former service members argue against the required off-set. Another issue of great concern to military retired veterans is the fact that they must offset their retirement pays dollar for dollar to the amount of VA disability they receive. This issue, commonly called Concurrent Receipt, places military retirees in a class of their own when it comes to receiving VA disability. Unfortunately, this is a class that is punished for twenty or more years of military service, not rewarded for it. No other veteran, whether a federal employee or private sector employee, has their retirement offset if they receive VA disability. According to the Depart299. (continued) ment of Defense, there are presently over 400,000 retired enlisted members of the uniformed services who are forced to offset their retirement. Often, these disabled veterans are unable to work due to conditions, which are connected, to the military service. The reward that these veterans receive is a deduction in their retirement. It is imperative that something be done to assist these veterans' live better lives . . . . It is also important to remember that the payment received from the Department of Veterans Affairs is not retired pay, but compensation for a disability sustained in service to our country. Hearing Before the House and Senate Veterans' Affairs Comms. on Veterans Legislative Priorities, 107th Cong. (Mar. 1, 2001) [hereinafter Hearing on Legislative Priorities] (testimony by Vincent B. Niski, Senior Master Sergeant, U.S. Air Force (Retired), National President of the Retired Enlisted Association).
312. See 38 U.S.C. §§ 5304-5305 (2000). Most members elect to receive VA disability rather than DOD disability because VA disability is not included in income tax, while DOD disability is included in income tax.
313. See, e.g., Ex parte Billeck, 777 So. 2d 105 (Ala. 2000); Ashley v. Ashley, 990 S.W.2d 507 (Ark. 1999); In re Marriage of Krempin, 83 Cal. Rptr. 2d 134 (Cal. 1999); In the Matter of the Marriage of Pierce, 982 P.2d 995 (Kan. Ct. App. 1999); Scheidel v. Scheidel, 4 P.3d 670 (N.M. Ct. App. 2000); Johnson v. Johnson, No. 02A01-9901-CV-00015, 1999 Tenn. App. LEXIS 625 (Tenn. Ct. App. Sept. 14, 1999); In re the Marriage of Harper, No. 22092-0-II, 2000 Wash. App. LEXIS 333 (Wash. Ct. App. Feb. 25, 2000).
314. EX-POSE provides a good example of this: Let us suppose that the amount of the retired pay is $2,000 and the former spouse is awarded 50% of that retired pay; let us further suppose that after the divorce decree is finalized and he has retired the service member contacts the VA and is awarded 30% VA disability (which is, of course, tax free). The calculation is now as follows: $2,000 - (30% VA disability or $279) × 50% = $861 Therefore, instead of the original amount awarded ($1,000), the former spouse now receives $861 and the member now receives only $721 of his former retirement pay from Defense Finance Center PLUS $279 (tax free) from the VA. Thus, the former spouse is subsidizing a VA disability claim which was not in effect at the time of their divorce!! Additionally, the amount of this VA disability may be increased again and again over the time of the member's retirement, until it reaches 100%, or $1,964. EX-POSE Position Paper, supra note 185.
315. Mansell v. Mansell, 490 U.S. 581 (1989). Major (MAJ) Mansell divorced his wife in California, before the McCarty decision, after twenty-three years of marriage and service. The state trial court divided Mansell's retired pay equally. However, when MAJ Mansell retired, he elected to receive VA disability pay, and therefore he waived a portion of his military retired pay. Following the USFSPA, MAJ Mansell successfully returned to court to limit the amount paid to his former spouse.
316. Mansell, 490 U.S. at 595 (O'Connor, J., dissenting). "The harsh reality of this holding is that former spouses . . . can, without their consent, be denied a fair share of their ex-spouse's military retirement pay simply because he elects to increase his after-tax income by converting a portion of that pay into disability benefits." Id.
317. Id. at 596-97 (O'Connor, J., dissenting).
318. See supra Section II.C (discussing congressional intent in passing the USFSPA).
319. See JA 274, supra note 14, at 9.
320. The USFSPA does not preclude state courts from considering former spouse's military disability benefits received in lieu of waived retirement pay when making equitable division of marital assets. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).
321. In the Matter of the Marriage of Pierce, 982 P.2d 995, 999 (Kan. Ct. App. 1999) (holding that the wife was barred by the statute of limitations from reopening the property settlement of the divorce decree after the husband began to take his military retired pay as disability pay).
322. See Pierce, 982 P.2d at 999; see also Marriage of Jennings, 958 P.2d 358 (Wash. Ct. App. 1998); Matter of Marriage of Reinauer, 946 S.W.2d 853 (Tex. Ct. App. 1997). The Kansas appellate court in Pierce noted that a majority of state courts grant relief in military retired pay offset by disability pay cases, but that rationale was inconsistent with Kansas state law. Pierce, 982 P.2d at 1000.
323. The Clauson court stated: We are persuaded that neither the USFSPA nor prior Supreme Court decisions required our courts to completely ignore the economic conse311. (continued) quences of a military retiree's decision to waive retirement pay in order to collect disability pay. The statute merely speaks to a state court's power to "treat" this type of military benefit "either as property solely of the [armed forces] member or as property of the member and his spouse." Clauson, 831 P.2d at 1257 (citing 10 U.S.C. § 1408(c)).
324. "[T]he rule established in (Mansell] allows the retiree to unilaterally make an election that diminishes the former spouse's share of marital property. This is patently unfair to former spouses, especially when retirees have designated them as beneficiaries under their Survivor Benefits Plan, as in this case." Pierce, 982 P.2d at 1000-01 (Green, J., dissenting). See generally JA 274, supra note 14, at 9.
325. Indemnity is defined as the duty to make good any loss incurred by another. BLACK's, supra note 4, at 772.
326. A property settlement is a judgment in a divorce case determining the distribution of the marital property between the divorcing parties. Id. at 1234.
327. This is also known as the "constructive trust" theory. Under the constructive trust theory, once the divorce is final the service member essentially holds in constructive trust that portion awarded to the former spouse and cannot take action to convert or change that interest without indemnifying the former spouse. See JA 274, supra note 14, at 9; see, e.g, In re Strassner, 895 S.W.2d 614 (Mo. Ct. App. 1995).
328. See, e.g., Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992) (holding that although the former wife could not receive a property share of the retired pay because of disability offset, because of an indemnity agreement in the separation agreement the court could order support payments in an amount equivalent to the percentage of retired pay).
329. See Abernethy v. Fishkin, 699 So. 2d 235 (Fla. 1997) (holding that although a former wife cannot receive the percentage of retired pay agreed upon in a separation agreement because the former husband is now receiving his retired pay as disability pay, she could receive the amount as alimony because the intent of the parties was to maintain a monthly level of payments); Longanecker v. Longanecker, 782 So. 2d 406 (Fla. Dist. Ct. App. 2001) (holding that although the retired pay was waived because of VA disability pay, because of a property settlement agreement the former wife is still entitled to receive that portion of disability pay as alimony); McHugh v. McHugh, 861 P.2d 113 (Idaho Ct. App. 1993) (holding that a separation agreement is a contractual obligation between the parties; the service member must make whole the former spouse for portions of retirement waived to receive disability payments); Dexter v. Dexter, 661 A.2d 171 (Md. 1995) (holding that a separation agreement is a contractual obligation between the parties; the service member must make whole the former spouse for portions of retirement waived to receive disability payments); In re the Marriage of Stone, 908 P.2d 670 (Mont. 1995) (holding that a separation agreement is a contractual obligation between the parties; the service member must make whole the former spouse for portions of retirement waived to receive disability payments). But see Kutzke v. Kutzke, No. 95 CA66, 1996 Ohio App. LEXIS 1480 (Ohio Ct. App. Apr. 12, 1996): We realize that reading the statute literally may inflict economic harm on many former spouses. But we decline to misread the statute in order to reach a sympathetic result when such a reading requires us to do violence to the plain language of the statute and to ignore much of the legislative history. Congress chose the language that requires us to decide as we do, and Congress is free to change it.
330. See Abernethy, 699 So. 2d at 235 (holding that the former wife could receive the retired pay amount as alimony). The court did not note, however, that an award of alimony does not carry the absolute ownership of a property award. Most states require alimony to terminate upon the remarriage of the recipient. See also Choat v. Choat, 2000 Wash. App. LEXIS 1288 (Wash. Ct. App. July 3, 2000). "We affirm the trial court's orders imposing a direct obligation . . . to pay . . . her one-half share of the combined total of the military retired pay and disability pay." Id. The Choat court enforced the original property settlement agreement, even though the former service member was now receiving disability benefits after waiving a portion of his retired pay. The court ordered that Mr. Choat pay the amount due out of money other than his disability benefits.
331. Owen 419 S.E.2d at 270. See also Holmes v. Holmes, 375 S.E.2d 387 (1988). "The judge did not specify that the payments had to come from the husband's excluded disability benefits. . . . [T]he husband is free to satisfy his obligation to his former wife by using other available assets." Id. at 395.
332. 533 S.E.2d 635 (Va. Ct. App. 2000).
333. Id. at 636. The court also noted that the parties agreed to a payment from husband to wife rather than directly from DFAS, arguably because they knew the agreement would not be approved by DFAS.
334. Id. at 639. The McLellan court should have converted this payment to "support" or "alimony" and should have clearly indicated that this payment was not a percentage of disability pay. Without this qualifying language, the court arguably violated the USFSPA.
335. THOLE & AULT, supra note 4, at 17 n.2. California and New Mexico courts have divided VA disability pay in violation of Mansell and the USFSPA. Other courts order alimony payments even if VA disability compensation is the former service member's only source of income.
336. The Clauson court noted: We are aware of the risk that our holding today might lead trial courts to simply shift an amount of property equivalent to the waived retirement pay from the military spouse's side of the ledger to the other spouse's side. This is unacceptable. In arriving at an equitable distribution of martial assets, courts should only consider a party's military disability benefits as they affect the financial circumstances of both parties. Disability benefits should not, either in form or substance, be treated as marital property subject to division upon the dissolution of marriage. Clauson v. Clauson, 831 P.2d 1257, 1264 (Alaska 1992).
337. See 10 U.S.C. § 1408(e)(6) (2000). Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted. Id. See, e.g., Clauson, 831 P.2d at 1257.
338. 481 U.S. 619 (1987).
339. Id. at 634.
340. The president of the Retired Enlisted Association recently stated: [J]udges have failed to recognize the fact that VA disability compensation is not retirement pay. Disability compensation should not be garnished to pay court-ordered obligations. Now, military retirees who are disabled, the more severely disabled the worse situation, are forced to surrender up to all of their already reduced retirement pay and a portion of their disability pension. This in spite of the fact that the USFSPA is supposed to protect disability pay from being garnished and that the United States Supreme Court reinforced this fact in its ruling in Mansel vs. Mansel in May, 1989. . . . [Congress should] pass legislation, which will strengthen the protections of VA disability compensation because it is obvious that they are being ignored today. Hearing on Legislative Priorities, supra note 299 (testimony by Vincent B. Niski, Senior Master Sergeant, U.S. Air Force (Retired), National President of the Retired Enlisted Association).
341. Despite evidence that courts circumvent Mansell, the number of direct alimony payments do not support that a widespread problem exists. Of the 62,046 USFSPA cases that DFAS currently makes, only 3813 are alimony payments. See DFAS E-mail, supra note 124 (providing statistics on USFSPA payments as of October 2000).
342. ARA Position Letter, supra note 175.
343. Miller E-mail, supra note 283 (noting her husband's former wife has an "elevated status" merely because she was the first wife during the military career.). "The USFSPA is intent on protecting the wife of my husband's former life, [while] it expresses very little interest in protecting me the wife of my husband's current life." Id.
344. See THOLE & AULT, supra note 4, at 33.
345. The value of having a property interest in the retired pay, rather than just receiving alimony payments was explained by the ABA as follows: Different state courts have described the distinction (between property division and alimony) in different ways, but typically they consider the distribution of property at divorce as a permanent division of assets created by efforts during the marriage, while alimony is discretionary is dependent upon the need and abilities of the parties, and is subject to review upon changed circumstances after divorce.
346. Amending the USFSPA to include VA disability payments as part of disposable retired pay would require repealing 10 U.S.C. § 1408(a)(4)(C).
347. Social Security Act, 42 U.S.C. § 659 (2000) (stating that VA disability pay can be garnished to provide child support or alimony payments).
348. See 38 U.S.C. § 5301 (2000). This statute requires a specific exemption exist for assignment of VA disability benefits; such an exemption exists for child support and alimony, but not for distribution as marital property. Thus, Congress treats VA disability as a higher priority than former spouses' rights to military retirement.
349. Disability pay is nontaxable to the member and is protected from certain creditors. See id.
350. House Bill 65 was reintroduced on 11 January 2001. House Bill 303, and its companion Senate Bill 170, were reintroduced in January 2001. These bills are slightly different than the similar bills that were introduced in the 106th Congress in that the new bills include retirees who were retired for disability and those who retired with fifteen to nineteen years of service as a result of military downsizing (for example, Temporary Early Retirement Authority). See Fleet Reserve Association, News-Bytes 01-18-01, at http.// www.fra.org/news [hereinafter FRA New-Bytes 01-18-01]; Fleet Reserve Association, News-Bytes 01-25-01, at http://www.fra.org/news.
351. House Bill 65 was reintroduced on 11 January 2001. House Bill 303, and its companion Senate Bill 170, were reintroduced in January 2001. These bills are slightly different than the similar bills that were introduced in the 106th Congress in that the new bills include retirees who were retired for disability and those who retired with fifteen to nineteen years of service as a result of military downsizing (for example, Temporary Early Retirement Authority). See Fleet Reserve Association, News-Bytes 01-18-01, at http.// www.fra.org/news [hereinafter FRA New-Bytes 01-18-01]; Fleet Reserve Association, News-Bytes 01-25-01, at http://www.fra.org/news.
352. House Bill 65 was reintroduced on 11 January 2001. House Bill 303, and its companion Senate Bill 170, were reintroduced in January 2001. These bills are slightly different than the similar bills that were introduced in the 106th Congress in that the new bills include retirees who were retired for disability and those who retired with fifteen to nineteen years of service as a result of military downsizing (for example, Temporary Early Retirement Authority). See Fleet Reserve Association, News-Bytes 01-18-01, at http.// www.fra.org/news [hereinafter FRA New-Bytes 01-18-01]; Fleet Reserve Association, News-Bytes 01-25-01, at http://www.fra.org/news.
353. See FRA News-Bytes 01-18-01, supra note 338.
354. H.R. 303, 107th Cong. (2001).
355. H.R. 65, 107th Cong. (2001).
356. As House Bill 65 explains, the former service member's retired pay would not be reduced "dollar for dollar." The bill suggested a proportionate decrease in retired pay based on the disability rating percentage. If a service member has a 10% disability rating, then the retired pay would have their retired pay reduced by 90% of the dollar amount of disability pay. For example, a service member with a 10% disability rating who is entitled to $100 per month in disability pay would reduce their retired pay by $90. As the disability rating increased, the percentage of that pay reduced from retired pay would decrease. For example, the retired pay would be reduced "if . . . the disability is rated 20%, by the amount equal to 80% of the amount of the disability compensation paid such person." Id. The bill explains that "[t]he retired pay of a person entitled to disability compensation may not be reduced . . . if and while the disability of such person is rated as total." Id.
357. THOLE & AULT, supra note 4.
358. In a LEXIS search of cases decided in the last two years, eleven out of twenty-six state and federal USFSPA cases involved VA disability compensation. The LEXIS search database included all federal and state cases between 1 April 1999 and 1 April 2001. Using this database, the terms "USFSPA" and "FSPA" yielded twenty-seven cases, one of which was a bankruptcy case. Of the twenty-six USFSPA cases, disability awards were at issue in eleven cases.
359. See REDUX Information, supra note 146 (explaining the Career Status Bonus or "REDUX" retirement plan). Under this plan, when service members who entered after 1 July 1986 reach their fifteen-year mark, they have the option of converting to the pre-1986 retirement plan or keeping the new plan and accepting a $30,000 bonus, which carries a commitment to remain on active duty until the twenty-year point. Because of the "bonus" payment while on active duty, these payment can be analogized to enlistment bonuses and judge advocate continuation pay.
360. These programs are explained supra Section III.H. See generally WILLICK, supra note 7, at 95-99 (detailing separation benefits and early retirement programs).
361. See, e.g., Mackey v. Mackey, No. 20,010, 2001 Ohio App. LEXIS 98 (Ohio Ct. App. Jan. 17, 2001) (holding that VSI payment was separate property of the service member).
362. McClure v. McClure, 647 N.E.2d 832, 841 (1994).
363. See, e.g., Mackey, 2001 Ohio App. LEXIS at 98. In Mackey, a man who received a VSI payment upon leaving the Air Force after fourteen years of service was not required to divide the payment upon his divorce. The court distinguished the VSI payment from a pension plan because the payment was made after divorce.
364. See In re Marriage of Crawford, 884 P.2d 210 (Ariz. 1994); In re Marriage of Babauta, 66 Cal. App. 4th 784 (1998) (holding that VSI pay is divisible); In re Marriage of Heupel, 936 P.2d 561 (Colo. 1997) (holding that a lump sum SSB payment is divisible as marital property); Kelson v. Kelson, 675 So. 2d 1370 (Fla. 1996) (holding that VSI payments were not covered by the USFSPA, but finding that as a practical matter VSI payments are the functional equivalent of the retired pay in which the former spouse has an interest); Lykins v. Lykins, 34 S.W.3d 816 (Ky. Ct App. 2000) (holding that payments under the VSI 350 (continued) were marital property and therefore the former spouse could be awarded a share of the payments); Blair v. Blair, 894 P.2d 958 (Mont. 1995); Kulscar v. Kulscar, 896 P.2d 1206 (Okla. Ct. App. 1995); Marsh v. Wallace 924 S.W.2d 423 (Tex. Ct. App. 1996) (holding that a lump sum SSB payment was divisible and granting the former spouse the same percentage of the SSB she would have received of retirement pay. The court found that the SSB was "in the nature of retirement pay, compensating him now for the retirement benefits he would have received in the future."); Marsh v. Marsh 973 P.2d 988 (Utah Ct. App. 1999) (holding that the separation benefit received by the service member was divisible and property of the marriage because it was equivalent to an advance on his retirement pay).
365. See Wallace, 924 S.W.2d at 423 (holding that SSB was "in the nature of retirement pay, compensating him now for the retirement benefits he would have received in the future."); Marsh, 973 P.2d at 988 (holding that the separation benefit were equivalent to an advance on his retirement pay).
366. But see THOLE & AULT, supra note 4, at 42. Separation bonuses are subject to the domestic family laws of each state. As such. Congress does not need to pass new legislation when judges now have the authority to divide such an asset according to state law. Id.
367. See id.
368. Currently, the court order to divide retired pay as part of a property settlement becomes worthless to the former spouse if the military member elects early retirement. See id. at 41.
369. These are relatively new programs resulting from downsizing the military. See WILLICK, supra note 7, at 94; THOLE & AULT, supra note 4, at 41-42.
370. See WILLICK, supra note 7, at 95.
371. NMFA Position Letter, supra note 7.
372. ABA Position Letter, supra note 7. The ABA would extend benefits further and argues that the "the same medical, exchange and commissary benefits should be provided to former spouses of members that would be enjoyed by members who have taken VSI or SSB, and their current spouses." Id.
373. DFAS currently has ninety days to process court orders and arrange for direct payment. 10 U.S.C. § 1408(d)(1) (2000).
374. See supra Section V.B for a complete discussion of the proposed use of separate property date for dividing military retired pay.
375. Section V.G infra proposes direct payment for all divisions of retired pay without the "ten-year overlap" requirment.
376. A 20/20/15 spouse is married to a service member for at least twenty years and the service member has at least twenty years of active service, but only fifteen of those years overlap. See discussion supra Section III.G
377. 10 U.S.C. § 1072(2)(F)(1). See discussion supra Section III.G2.
378. See ABA Position Letter, supra note 7. See Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act to Grant Benefits to Certain 20/ 20/15 Spouses (Jan. 2001) [hereinafter Tax Council Proposal to Grant Benefits to 20/20/15 Spouses] (on file with author).
379. See Tax Council Proposal to Grant Benefits to 20/20/15 Spouses, supra note 364 (discussing a recommended change to the USFSPA); see also Philpott, supra note 182.
380. This recommendation would require a change to 10 U.S.C. § 1072(2)(F).
381. The Tax Council's proposal is slightly different on the medical benefits eligibility requirements. They recommend: "medical benefits by having each month of marriage after the member's retirement count toward satisfaction of the 20-year marriage/service overlap." See Tax Council Proposal to Grant Benefits to 20/20/15 Spouses, supra note 364.
382. This proposal had been unsuccessfully introduced during the 98th Congress. A House report at that time suggested that the reason that many military marriages never reach the 20/20/20 requirement is that many service members do not marry until after they enter the armed forces, but retire promptly at twenty years of service. H.R. REP. 98-1080. at 299-300, 98th Cong. (1985).
383. See Tax Council Proposal to Grant Benefits to 20/20/15 Spouses, supra note 364; see also Philpott, supra note 182.
384. See Tax Council Proposal to Grant Benefits to 20/20/15 Spouses, supra note 364.
385. See 10 U.S.C. § 1065(e).
386. Emswiler Interview, supra note 8.
387. 10 U.S.C. § 1408(h).
388. See discussion supra Section III.
389. Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act Dependent Victims of Abuse Provisions (Jan. 2001) [hereinafter Tax Council Victims of Abuse Proposal] (on file with author). Confinement is not considered creditable service for the purpose of retirement.
390. E-mail from Kenneth Asher, Senior Associate Counsel, Defense Finance and Accounting Service, to Major Mary J. Bradley (Feb. 26, 2001) [hereinafter Asher E-mail] (on file with author).
391. Tax Council Victims of Abuse Proposal, supra note 375.
392. Id.
393. The actual number of former spouses this amendment will affect is difficult to predict. Because there are fewer than twenty-five former spouses in the entire program, Asher E-mail, supra note 376, this amendment will not likely affect more than a handful of people.
394. 10 U.S.C. § 1408(d)(1) (2000). The USFSPA does not require the ten-year overlap for direct payment of child support payments or alimony. See generally discussion supra Section III.D.
395. See THOLE & AULT, supra note 4, at 13-14 (stating that one common misconception about the USFSPA is that the parties must be married for ten years to qualify for benefits); WILLICK, supra note 7, at 81 (noting that the 20/10/10 requirement is not a limitation on subject matter jurisdiction). During a "letter to the editor" debate in the San Antonio Express-News, a former spouse wrote a letter correcting the facts of an editorial about the horrors of the USFSPA. However, she incorrectly stated that "the couple must have been married at least ten years before the act will award any portion of the service member's retirement to the spouse." See Karen Silvers, Get the Facts Straight (Editorial), SAN ANTONIO EXPRESS-NEWS, July 18, 2000, at 4B (responding to Verburgt's letter of 8 July).
396. See, e.g., Bryant v. Bryant, 762 P.2d 1289 (Alaska 1988) (holding that the retired pay was divisible, despite the service member's argument that they had not been married ten years; however, the court stopped the garnishment order for the property award because the ten-year-overlap rule had not been met); Beltran v. Beltran, 183 Cal. App. 3d 292 (1986) (noting that the service member argued that the ten-year rule applied to whether retired pay was divisible as marital property); Pacheco v. Quintana, 730 P.2d 1 (N.M. Ct. App 1985) (rejecting the service member's argument that his former wife should not be entitled to any of his retired pay because they were married less than ten years); In the Matter of the Marriage of Wood, 676 P.2d 338 (Or. Ct. App. 1984) (holding that the service member's interpretation of the ten-year rule was "totally lacking in merit"); Cook v. Cook, 446 S.E.2d 894 (Va. Ct. App. 1994) (noting that the service member's argument was that his former wife should not receive a share of his retired pay because they hadn't been married ten years); Parker v. Parker, 750 P.2d 1313 (Wyo. 1988) (holding that despite the service member's argument, the ten-year rule applied only to the direct-pay process).
397. Cook, 446 S.E.2d at 896 (Va. Ct. App. 1994) (citing Carranza v. Carranza, 765 S.W.2d 32, 33-34 (Ky. Ct. App. 1989)).
398. See, e.g., Stone v. Stone, 725 S.W.2d 145 (Mo. Ct. App. 1987) (holding that the trial court incorrectly concluded that "federal statute imposes a ten-year marriage requirement as a pre-condition to distributing a military pension as marital property").
399. See. e.g., Beltran, 183 Cal. App. 3d at 296 (reviewing the legislative history of the USFSPA before deciding that the ten-year rule applied to direct-pay rather than whether retired pay was divisible as marital property); In the Matter of the Marriage of Konzen, 693 P.2d 97 (Wash. 1985) (Brachtenbach, J., dissenting) (concluding that the term "section" in 10 U.S.C. § 1408(d)(2) meant the entire § 1408, not just § 1408(d)(2) and thus the ten year overlap was required for any division of retired pay as marital property); Parker, 750 P.2d at 1313 (reviewing legislative history of the USFSPA before ruling that the ten-year rule applied only to the direct-pay process).
400. In re Marriage of Deason, 611 N.W.2d 369 (Minn. Ct. App. 2000). "The district court erred in concluding that 10 U.S.C. § 1408(d)(2) (1994) precludes the division of military pensions in dissolution actions where the party with a military pension did not complete ten years of creditable service during the marriage." Id.
401. One commentator advises attorneys how to handle this situation. WILLICK, supra note 7, at 84-86. One suggestion he provides is to offset the retirement award; use the present value of the spouses interest in the retired pay and offset against other marital property, or cash to be paid off. Another suggestion is to request permanent alimony rather than a share of marital property; he recommends agreeing to a lesser amount of alimony to have the service member agree. This settlement would be an irrevocable, unmodifiable alimony in an amount measured by the military retired benefits, in exchange for a waiver by the former spouse of any property interest in the retirement benefits themselves.
402. See generally WILLICK, supra note 7, at 121-22 (discussing voluntary allotments).
403. See Goad v. United States, No. 00-5063, 2000 U.S. App. LEXIS 20189 (Fed. Cir. July 21, 2000) (noting that in an earlier court case. Goad had been found in contempt of court for failure to pay his former spouse her share of his retired pay).
404. See id. (noting that in an earlier court case, Goad had been imprisoned following a ruling that he was in contempt of court for failure to pay his former spouse her share of his retired pay).
405. Id. at 123.
406. 10 U.S.C. § 1408(d) (2000).
407. See Jordan v. Jordan, No. 99-CA-64, 2000 Ohio App. LEXIS 1048 (Ohio Ct. App. Mar. 17, 2000) (resolving in favor of the former spouse the issue of whether the dollar amount of a former spouse's percentage of retired pay should be determined before or after the federal government withholds taxes).
408. 10 U.S.C. § 1408(d)(2). See Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act to Allow Either Members or Former Spouses to Submit an Application for Direct Payment of Benefits (Jan. 2001) (on file with author).
409. The Armed Forces Tax Council supports this proposal. Philpott, supra note 182.
410. Defense Finance and Accounting Service currently reviews and rejects applications that do not meet the ten-year overlap rule. DFAS E-mail, supra note 124.
411. Defense Finance and Accounting Service could not report the former spouse's military retired pay income to IRS. This change could aide accounting for DFAS, retirees, and ex-spouses when divorce court orders involve spouses married to members for less than ten years. Philpott, supra note 182.
412. Reporting is typically done on an IRS Form 1099-R.
413. Emswiler Interview, supra note 8 (noting that based on information compiled for the DOD Report, other federal and private retirement plans do not include a direct payment limitation); Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniform Services Former Spouses' Protection Act to Repeal the "10-year Rule" for Direct Payment of Retired Pay Allocations (Jan. 2001) (on file with author).
414. Act of Nov. 18, 1997, Pub. L. 105-85, 111 Stat. 1799 (requiring the Secretary of Defense to review and report on the protections, benefits and treatment afforded retired uniformed services members compared to retired civilian government employees).
415. But see DFAS E-mail, supra note 124 (noting that there is no way to determine the additional volume of court orders or the additional cost).
416. See id. (noting that DFAS withholds income tax from retired pay).
417. Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act to Waive Recoupment of Overpayment to Former Spouses Resulting from Retroactive VA Disability Determinations) (Jan. 2001) [hereinafter Tax Council Recoupment Waiver Proposal] (on file with author).
418. See, e.g., Kramer v. Kramer, 567 N.W.2d 100 (Neb. 1997) (noting that a service member's 1995 disability rating was made retroactive to 1992).
419. See DFAS E-mail, supra note 124.
420. See id.
421. See id.
422. See 10 U.S.C. § 2774 (2000).
423. Tax Council Recoupment Waiver Proposal, supra note 403.
424. Emswiler Interview, supra note 8 (noting that DFAS typically grants waivers of debt if the original award was properly made).
425. Tax Council Recoupment Waiver Proposal, supra note 403.
426. Id.
427. 10 U.S.C. § 1408(d)(1); 32 C.F.R. § 63.6(c)(2) (2000).
428. Emswiler Interview, supra note 8. In response to requests for comment on the USFSPA, the working group on the DOD report received numerous complaints about DFAS processing time. These complaints came from both former spouses and former service members.
429. Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act Protection Rules Pertaining to Notification of Members (Jan. 2001) (on file with author). Members occasionally request that payments start immediately. Amending the statute will clarify the member's rights in this respect. The proposal would also amend the USFSPA to delete the requirement that a copy of the court order be sent to the member. DFAS will instead notify the member that, upon request, it will send the member a copy of the order. Id. The Tax Council provides an example of how this provision has worked for child support. Since the child support waiver provision took effect, DFAS has processed approximately 10,000 orders but received only approximately 300 requests for copies of the court order. The Tax Council's recommendation would reduce DFAS's administrative costs and ensure prompt payment of USFSPA payments to former spouses.
430. Emswiler Interview, supra note 8.
431. Id. This process is similar to the process that the IRS and ERISA require for private retirement plans.
432. Id. Currently, pre-approval of court awards is not allowed by statute or the implementing regulation. However, DFAS is planning to provide "standard" approved formats for formulas and hypothetical awards, which will be available to the public. See DFAS E-mail, supra note 124.
433. Parties can return to court to obtain clarifying orders. See WILLICK, supra note 7, at 24.
434. See DFAS E-mail, supra note 124.
435. 10 U.S.C. § 1408(g) (2000). "A person receiving effective service of a court order . . . shall, as soon as possible, but not later than 30 days after the date on which effective service is made, send a written notice of such court order . . . to the member affected by the court order . . . ." Id.
436. Id.
437. Specific "cut-off" dates for processing retired pay garnishment each month trigger when the actual payment will start. See DFAS E-mail, supra note 124 (explaining the legal review of USFSPA applications and court orders).
438. See id.
439. See id.
440. See id. Some of these applications are those that were previously rejected submissions that are re-submitted with further documentation or a clarifying order. Id.
441. See id. The rejected applications are not categorized by "reason for rejecting." However, many are rejected for incomplete or unclear applications. Others are rejected because the former spouse does not qualify for direct payment or because the jurisdictional requirement was not met.
442. The DFAS implementing regulation is 32 CFR pt. 63 (2000).
443. See DFAS E-mail, supra note 124.
444. See id.
445. See id.
446. See id.
447. Defense Finance and Accounting Service, Garnishment, at http:// www.dfas.mil/money/garnish/ (last modified Mar. 21, 2001) (providing a fact sheet, frequently asked questions, and DD Form 2293).
448. See DFAS E-mail, supra note 124.
449. DD Form 2293, Application for Former Spouse Payments from Retired Pay (Jan. 1999).
450. A similar proposal is made by the Armed Forces Tax Council. See Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act to Allow for Electronic Transmission of Court Orders and Applications for Payments (Jan. 2001) (on file with author).
451. The USFSPA implementing regulation also discusses the SBP. See 32 C.F.R. pt. 63 (2000).
452. The Armed Forces Tax Council has recommended an additional change to the SBP. See Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Uniformed Services Former Spouses' Protection Act to Allow Automatic "Cash-out" of "Small Benefits" and Optional "Cash-out" of SBP and "Large Benefits" (Jan. 2001) (on file with author). The primary aspect of this recommendation is to decrease the DFAS workload created by many small monthly payments to former spouses. These benefits could be automatically cashed out as a lump-sum payments to former spouses. An additional plan could be established for larger lump-sum payments. A discussion of this Armed Forces Tax Council proposal is beyond the scope of this article.
453. One former spouses' organization recommends changing the method of premium payments. NMFA Position Letter, supra note 7. Currently, former members have SBP premiums for current or former spouses deducted from disposable retired pay. According to NMFA, this has lead to inequities. Current law does not allow the former spouse to pay the SBP premium directly, even when the ratified agreement includes the provision that the former spouse is responsible for the payment. NMFA believes that both parties in the divorce would be better served if, in these situations, the former spouse could pay the premium directly to DFAS. In almost all cases, DFAS would be able to deduct the premium from the amount provided by DFAS to the former spouse. 439. (continued) Id. This article does not disagree with NMFA's position on this issue; however, no evidence exists that would warrant this change.
454. The ARA supports changes to the SBP. See ARA Position Letter, supra note 175.
455. The Armed Forces Tax Council supports changes to the SBP See Legislative Initiative for Unified Legislation and Budgeting, originated by the Armed Forces Tax Council, subject: Amend the Survivor Benefit Plan Rules (Jan. 2001) [hereinafter Tax Council SBP Proposal] (on file with author). The Tax Council specifically recommends amending the SBP to: permit the designation of multiple SBP beneficiaries; establish a presumption that multiple beneficiary designations and related allocations of SBP benefits must be proportionate to the allocation of retired pay; permit the courts to establish and designate responsibility for payment of premiums related to SBP coverage; repeal the one-year deemed election period requirement. Id.
456. Second spouses are a vocal proponent of reforming the SBP. See E-mail from Diane M. Ungvarsky to Lieutenant Colonel Thomas K. Emswiler (Feb. 19, 1999) [hereinafter Ungvarsky E-mail] (noting that if husband dies on active duty, his SBP will go to ex-wife). "The USFSPA hurts too many second spouses. The new spouse is left without coverage and support." Id. Miller E-mail, supra note 283 (noting that even though she was with her husband during most of his military career and ended up making significant PCS moves, his first wife is awarded an "elevated status merely because she was my husband's first wife during his military career"). Former service members also support this amend-ment. See E-Mail from John L. Milliken, U.S. Navy (Retired), to Lieutenant Colonel Thomas K. Emswiler (Feb. 20, 1999) [hereinafter Milliken E-mail] (supporting SBP to more than one spouse). Some individual former spouses, however, disagree with multiple beneficiaries. See, e.g., E-mail from Nancy R. Jones to Lieutenant Colonel Thomas K. Emswiler (Mar. 2, 1999) [hereinafter Jones E-mail].
457. Changing the SBP to allow for more than one beneficiary was frequently mentioned in letters and e-mails the DOD received in response to its request for input on revising the USFPSA. See Ungvarsky E-mail, supra note 442 (noting that her husband's ex-wife will receive the full SBP if her husband dies while on active duty); Milliken E-mail, supra note 442 (noting that the SBP should change to "allow more than one spouse" as beneficiary). But see Jones E-mail, supra note 442 ("According to my divorce decree I get all of the SBP and I want it to stay that way!").
458. This presumption should be built into the statute, but allow the parties to agree otherwise. The Tax Council made a similar recommendation. Tax Council SBP Proposal, supra note 441. See ARA Position Letter, supra note 175 (supporting a pro rata share of SBP annuity equal to the percentage share of retired pay). Some former spouses also agree that current spouses should receive pro-rata share of the SBP annuity. See, e.g., Letter from Janelle G. Macdonald to Lieutenant Colonel Thomas K. Emswiler (Feb. 21, 1999) (stating that the SBP pro-rata share should occur in the same manner as the monetary division of the retirement, based on the length of the marriage for each spouse leading up to retirement; however, "if a current spouse has married after the retirement of the former military person then no SBP entitlement should be granted to the current spouse, as that was not married to the individual during the military career").
459. The Armed Forces Tax Council supports changes to the SBP. See Tax Council SBP Proposal, supra note 441.
460. See supra Section III.F (providing a complete discussion of the one-year deemed election rule).
461. WILLICK, supra note 7, at 154-55.
462. See id. at 155 n.72 (citing DEPARTMENT OF DEFENSE REP. ON THE SURVIVOR BENEFIT PLAN (Aug. 1991)).
463. Dugan v. Childers, 539 S.E.2d 723 (Va. 2001).
464. The couple was married in 1951. The service member retired in 1975, at which time he designated his wife as the beneficiary of the SBP annuity. Upon their divorce in 1987, the former service member agreed that his former wife was entitled to one-half of the retirement benefits and the SBP annuity. See id. at 723-24.
465. See id. at 721.
466. The former service member remarried in 1994 and changed his SBP beneficiary to his current wife. In 1996, the former service member was found guilty of contempt and directed to change his SBP beneficiary back to his former spouse. However, he died before he complied with the court order. See id.
467. The state court's contempt holding was preempted by 10 U.S.C. § 1450, which governs the subject of former spouse's entitlement to the survivor's benefits of a military retiree. See id. at 725. Concerning pre-emption in general, the Supreme Court has said that "if Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984). Because Congress has occupied the field of military retirement benefits, state courts cannot make laws that contradict the federal laws.
468. 41 Fed. Cl. 371 (1998).
469. Id. at 375.
470. See, e.g., Woll 41 Fed. Cl. at 371; Nicholas v. United States, No. 96-394, 1999 U.S. Claims LEXIS 99 (Fed. Cl. Apr. 22, 1999); Sumakeris v. United States, No. 96-5069, 1996 U.S. App. LEXIS 16170 (Fed. Cir. July 8, 1996); Wise v. Wise, 765 So. 2d 898 (Fla. Dist. Ct. App. 2000); King v. King, 483 S.E.2d 379 (Ga. App. 1997); Silva v. Silva, 509 S.E.2d 483 (S.C. Ct. App. 1998); Dugan, 539 S.E.2d at 723.
471. This hypothetical military divorce is unable to capture all of the proposed change to the USFSPA. This hypothetical involves a marriage that lasts less than ten years. Thus, certain changes are automatically excluded from consideration. Proposals not addressed include: granting benefits to 20/20/15 spouses, the Dependent Victims of Abuse Provision, and the improved DFAS processing and efficiency.
472. The exception being "changes in circumstances" for alimony or child support modifications, which are outside the scope of this article.
473. The court could use the following formula: length of overlap of 1/2 × marriage & service × 100 = % of pay based on separate property date rank/longevity on time in of service separate property at vesting and insert the hypothetical information into the formula, 1/2 × 8/20 × 100 = 20% of O-3 with 8 years service the court would determine that Anne is entitled to 20% of the retired pay of a captain (O-3) with eight years service.