By MSgt Ronald King, US Army (Ret)

Americans always thought that US Supreme Court decisions could not be overridden. But along came the 97th Congress, prompted by Representative Pat Schroeder, and what did they do?  They passed the Uniformed Services Former Spouse’s Protection Act (USFSPA) on 8 Sep 82, and backdated the law to 25 Jun 1981, overturning the Supreme Court’s decision.  

Since the USFSPA came into effect 25 years ago, the courts responsible for seeing our laws are obeyed and that justice is served, have allowed exactly the opposite.  Military retirees and those still on active duty who pursue a military a career are often treated much like criminals in our courts of law.  What have they done to deserve such treatment other then to spend their most productive years defending their country, and in many cases, with their lives?  Pray tell, how many former spouses have died defending our country while standing in the line at the commissary?

There are organizations today, namely EXPOSE and the NOW gang, that have convinced Congress that repeal of the USFSPA will cause a former spouse to become destitute and helpless, and the children to go hungry. These groups have highlighted and painted the exception as being the “norm.”  Though there have been and always will be situations when a military veteran has “dumped” a spouse for a “younger model” (and vice-versa is on the rise), this is a generality far from the truth, yet is often presented as, “how it is,” and which Congress has bought, for years.  One must ask then what is the truth, what are the facts when it comes to application of the USFSPA?  It is simply the perception that the service member can take it, won’t fight it, so let’s let them handle this style of “welfare.”  Stick it to the service-member however you can – does this sound unbelievable and far-fetched?  Well there are countless documented instances and here is how it often plays.  Starting with those responsible for seeing the law is applied properly and is represented fairly in a court of law are the judges and lawyers in every state.  But that doesn’t necessarily make for fairness and equity. There is one well-known attorney who reportedly charges a contingency fee to the former spouse based upon the amount of the award that he is able to get for his client.  Perhaps not against state law, but it certainly violates the ABA Rules of Conduct.  To quote their rule: A member may not enter into an arrangement for charge, or collect any fee in a domestic relations matter the payment or amount contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.  End quote.  Therefore, the more that an attorney can stick it to a divorcing military retiree the more they have to fill their pockets.  And what about those judges who swear to fairly interpret laws and render unbiased decisions based upon the law?  The USFSPA federal law outlines procedures and formulas as to how military retainer pay may be divided if a state court so chooses. Believe me, state judges are rendering wildly varying and inconsistent applications of this law.  First of all, and in many cases, judges interpret the law, or at least so decide, that they can award up to 50% of the military retirement pay – 65% if alimony and child support are added.  They are arbitrarily doing this regardless of the length of the marriage in most cases.  How do we know this?  Because, for example, we know an Army Lieutenant Colonel living in Arizona who had 50% of his retirement awarded by the court after just three years of marriage and two years of separation.  The formula for a 50% garnishment is if the marriage lasted the entire military career -- marriage before service entry and still married at time of retirement.  The Defense Finance and Accounting Service (DFAS) provides a handout which spells out the percentages in detail but most attorneys we have observed are either unaware or just out to see the former spouse gets “over and beyond” the entitlement.

Judges should be ashamed and legally punished for what they are doing in the interpretation of the USFSPA explanation of disposable pay.  Because, the law states:

(4) The term “disposable retired pay” means the total monthly, retired pay to which a member is entitled less amounts which:

                        -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:

                        -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.

There’s no need to go into all of the possible deductions as are laid out in the above paragraphs, but only the primary one, Title 38, which governs VA Disability.

TITLE 38 > PART IV > CHAPTER 53 > § 5301

§ 5301, Non-assignability and exempt status of benefits

(a)

(1) Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim 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.

(3)

(a) This paragraph is intended to clarify that in any case where a beneficiary entitled to compensation, pension, or dependency and indemnity compensation enters into an agreement with another person under which agreement such other person acquires for consideration the right to receive such benefit by payment of such compensation, pension, or dependency and indemnity compensation, as the case may be, except as provided in subparagraph (B), and including deposit into a joint account from which such other person may make withdrawals, or otherwise, such agreement shall be deemed to be an assignment and is prohibited.

May I ask, what is so difficult to understand and interpret as written above and yet this portion of the law is continuously violated by the courts?  A Florida judge, when presented with Section 5301, allegedly turned the document face down in front of the military retiree and refused to read it.  The retiree lives in San Antonio, Texas, and is known by this writer. 

There are numerous cases where a divorce decree has awarded a percentage of the military retiree’s VA Disability pay to the former spouse.  One such case in California was where a court awarded a percentage of the disability to the former spouse and the decree also stated that seeing the pay was exempt from taxation to the retiree, that is was also tax exempt to the former spouse.  We have this divorce decree on file.

We have on file another case where a retiree was ordered by the court to pay an extra $1,000 per month in alimony for a period of ten years.  In addition, 100% of the military retirement pay to include his VA Disability was also awarded to the former spouse.  This divorce decree is also on file.

We have documentation of numerous cases where wording in the divorce decree ensures that a former spouse’s portion will not decrease should a military retiree apply for and receive a higher VA disability rating which can result in a lesser amount going to the former spouse.  Lawyers are putting into decrees wording that forbids the retiree from seeking additional VA ratings that reduce the former spouse’s share, and if they do then they must pay the loss to the spouse from out-of-pocket.  There is wording included that should the pay be reduced because of disability, the loss to the ex-spouse must come from the retirees “other assets.”  Therefore, as far as the courts are concerned the VA Disability is not being touched.

If the retiree is forced to repay the former spouse’s reduced award due to an increased VA disability, that is clearly in violation of the law as disability entitlements are “supposedly” protected by federal law. The Supreme Court in their 1989 Mansell decision said, quote: The Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability benefits. End quote.

The Supremacy Clause, Article VI, Cl2 of the US Constitution states, quote:  This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Unites States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any state to the contrary notwithstanding.

Therefore, if there is conflict between state and federal law, then federal law will take precedence.  A frequent comeback is that the law states that the pay will be divided in accordance with state law and that is how they are applying it.  That erroneously interprets that states have the authority to divide military retirement pay.  To our knowledge, there is NO state that specifically addresses military retirement in its statutes, only traditional retirements and pensions.

It is clear, state judges are violating the Law of the Land when they make such rulings.  A point requiring interpretation and a clear understanding is the erroneous statement that a military retirement/retainer entitlement is a “pension.” The USFSPA lists military retirement/retainer pay 65 times and the word pension, zero (0).  Supporting the official government contention that military retirement/retainer pay is not a pension is also found in the Department of Defense Report to Congress in September 2001, Page 71.  It reads, “The military retirement system, however, is unlike any private sector retirement plan. The member makes no contribution to the plan, the member has no vested interest in the plan until he or she becomes eligible to retire, and even after becoming eligible to retire, the member can be divested of retired pay through punitive action based upon the member’s misconduct.  Even after retiring, the member can be recalled to active duty, can forfeit retired pay because of misconduct, and face certain post retirement employment restrictions. 

To receive retirement pay a retired military member must abide by the Uniform Code of Military Justice (UCMJ).  A retiree can lose the pay if he / she, 1) refuses recall to active duty, 2) is incarcerated for a certain period of time (usually six months), 3) renounces US citizenship and (4) becomes a citizen of another country.

Recently, the ULSG had filed a lawsuit stating that there are certain provisions of the US Constitution that were being violated.  Attorneys for the US Government fought vigorously to defend the USFSPA and in all hearings brought up in the court that there were provisions in the USFSPA that protected the military member.  The problem today is that there are some protective provisions written into the USFSPA but that are routinely ignored by state courts and judges and even the Defense Finance and Accounting Service (DFAS).  In the DFAS handout on Page 5, near the bottom of the page it states, quote: State courts have authority to divide military retired pay only as set forth by the USFSPA.  Thus, state court provisions not in accordance with the USFSPA are technically and legally unenforceable.

This is clearly double-talk by the DFAS.  Of the divorce decrees sent to the DFAS by State Judges and Courts, at least 98% are in violation of USFSPA provisions, and yet the DFAS honors these decrees.  The only area that they have not yet violated is that they are not paying any VA disability to a former spouse.  However the courts are forcing disability payments through other methods.

The USFSPA is doing more harm and creating more chaos that perhaps any other federal law on the books – certainly there is no other law that is more devastating to uniformed military members who are divorced and retired, or who may be someday. We do not advocate a divorce that leaves a former spouse, male or female, destitute or that fails to properly protect children of that marriage.  But when a law is written, it must be written fairly, clearly, objectively and with common sense and consistency of application in mind.  The USFSPA certainly meets none of these tests!

Congress, who put this law into effect almost 27 years ago targeting only those uniformed military service members who married while in service and ultimately divorced, should be called upon today to determine how applicable and appropriate this law still is.  Is it accomplishing what it was intended to “fairly” achieve?  In our 21st Century military, today and forward, there are and will be more and more females in the ranks, marrying and divorcing and planning for a military career.  Ironically, as the law was written to protect the female spouse, this law is today devastating female retirees just as males have been hammered since 1982.  Quarter century-old societal issues have changed dramatically in America and throughout the world, and out of date laws need to be revisited and dealt with.  The USFSPA is a prime example. A “federal divorce law” is obsolete and unnecessary as all 50 states have their own statutes, which work quite well for all other divorced citizens. 

Not even all prison sentences for murder are life without parole – why then the USFSPA which terminates its penalties only upon the death of either principal?

How can we deny that America has not betrayed its military?