How Divorce Affects Members of the Military, Guard and Reserves, Coast Guard, The Commissioned Corps of the U.S. Public Health Service and The Commissioned Corps of the National Oceanographic & Atmospheric Administration (NOAA)
Twenty-five years ago in 1981, the United States Congress passed a law, hastily conceived, as an amendment to the 1983 Defense Appropriation Act, that was not too well known within the military community. This law, Title 10 United States Code 1408 is called the Uniformed Services’ Former Spouses’ Protection Act, the USFSPA. The Federal law is applied to all Army, Navy Air Force, Marine, Coast Guard, and NOAA members in the process of a divorce, to have their retainer/retirement pay treated as common property by state court judges. The law, in effect, gives the state court judges the power to treat retirement pay as tangible property and award a portion of the retired pay, up to 50%, to a former spouse. No other government agency is affected by this law, just those mentioned above. It must be understood, that military retirement is a benefit awarded to a service member for retained services, where a former service member can and will, be recalled to Active Duty in time of need. Military retirement is not a pension; members do not contribute to any pension fund, but only a benefit of service…
Today, the United States Armed Forces has a greater divorce rate than civilian society which is currently greater than 50% and although the Department of Defense is a strong advocate of “family values” their respective treatment of those members facing divorce or who are divorced, is one that is shameful. DOD and Congress have turned their backs on this major problem, placing at risk, the very foundation of our military system, sustaining military careers. Regardless of rank, divorce is an across the board, traumatic event. State court judges seemingly are automatically court awarding retirement/retainer benefits to former spouses without regard to circumstances surrounding the divorce or the financial hardships the court awards place on service members. Such court awards will eventually result in a military that is weaker because retention rates will diminish, experience will go away after six to eight years of service, and although the DOD remains loyal to family values, the very freedom of the country will suffer, simply because of the USFSPA.
This law, when originally passed, identified some significant qualities such as identifying that women were not treated equally, whether in the military or, as a spouse. However, over the last 25 years, significant changes in attitudes and laws have significantly balanced the scales of equality and cannot be applied in today’s society. Society in the United States has changed and our laws, especially the USFSPA, needs to be repealed. A few examples that demonstrate the unfairness of this law are:
1. If a service member divorces at 10 years service and stays on to further their career – the former spouse goes his/her own way. The former spouse may remarry while the military member continues an upward progression in their respective careers. However, when it comes time for retirement, say 12, 15, or even 20 years later – the former spouse will be entitled to receive or automatically receive by a court award, up to 50% of the service member’s retirement pay based on the rank at retirement, not the rank at divorce. Also, the third party that the ex-spouse remarries automatically benefits from the service members retired pay.
2. A former spouse remarrying another military member and subsequently divorcing for a second time and being awarded 50% of each member’s retirement pay. Now, the former spouse who was married to two service members, is drawing 100% retirement pay while the two veterans, who served without question, served with honor, duty, and a commitment not exceeded by any other profession today, go on in life with half of what they rightfully earned.
3. A third and final example is the former spouse who is receiving a court-awarded portion of retired/retainer pay who commits a felony and is found guilty of the felony. The former spouse will still receive their portion of the military member’s retirement/retainer pay – but, had the service member committed the felony – their pay would have automatically been stopped, because they remain subject to the Uniform Code of Military Justice whereas the former spouse does not.
Where is the fairness in the treatment of retired/retainer pay as property for the service veteran? When states have “No Fault” laws – then there is no fault and more than likely as shown by the statistics, state court judges automatically award 50% of the retired/retainer pay to a former spouse just to clear the docket due to the many cases before them. THIS MUST STOP!
Since the mid-1980’s, the United States of America has been involved in conflicts throughout the world, some lasting over a few years, others lasting only months. The divorce rate has not decreased since the passing of the USFSPA, it has significantly increased and continues to rise. There have been 22 changes to USFSPA since inception. However, only one has favored the service member.
In 2003, a grassroots effort was started to take legal action in federal court to demonstrate this law, the USFSPA, is unconstitutional. Today, the legal action continues in the UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA in Alexandria, VA. There are over 200,000 service members affected by this law and the list grows daily; yet, less than 5% are actively participating in the repeal of the USFSPA. The lawsuit, headed by an organization entitled the ULSG, LLC, is fighting a hard battle to repeal this law and see to it, the challenge to repeal the law, continues. This entire effort is funded by contributions of service members, both active and retired, who think this law is unfair, unreasonable and needs to be done away with. The ULSG members are uncompensated for the time and effort they are putting into this battle, as all contributions are applied to the legal expense of this effort. The ULSG LLC has a web site: www.USFSPA-lawsuit.info and all Active Duty members, National Guardsmen, Coast Guardsmen, NOAA members, veterans and others affected by this law are encouraged to visit the web site, consider making a contribution (click here for details) and participate in getting this law repeals. If a monthly allotment of $10 is given to battle this wrongdoing, equivalent to the cost of lunch in any major city, we ask for any and all consideration to contribute. Your contributions may save this nation's military.
If you think this will never happen to you – think again, the statistics are against you!
In closing, the ULSG LLC wants to sincerely thank those who are helping sustain the legal battle, those who are getting the word out, those who are exposing this unjust law, and to those who are in service, retired, or are part of this battle – we thank you! Please, do what you can do to help – participate however best possible. Truth, Duty, Honor, Country – we must maintain.
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