USFSPA FAIRNESS ISSUES
REIMBURSEMENT FOR SERVICES PERFORMED
The USFSPA gives equal weight to the contributions ( to national security) of a former spouse and those of a military member. While military spouses make unique and important contributions to the military member, and to national defense, those contributions are of a vastly different nature than those of military members. Military retired pay was intended by Congress to reward dangerous service to the country where one's life is at peril. Duty as the spouse of a military member does not include these perils. The USFSPA has diminished the reward of retired pay to military members for going in harms way.
EXAMPLE: A military member now serving in Afghanistan, with a spouse in the USA for the duration, could be required to share his/her retired pay, for life, with an ex-spouse whose "services" to the federal government involved none of the hazards faced by the member.
The military member must serve at least 20 years to qualify for retired pay. Under the USFSPA a former spouse is, in effect, vested in at least a share of the member's retired pay, for life, immediately upon marriage without a comparable 20 year requirement.
EXAMPLE: A career military member divorces after 10 years of marriage and retires on 20. His/her former spouse will receive 25 percent of his/her retired pay until the death of either the member or the former spouse, even if the former spouse remarries.
Military members involuntarily separated were paid on the basis of time served. Under the USFSPA former spouses receive payments for life, regardless of time served as the spouse of a military member.
EXAMPLE: "Early Outs", all of whom had less than 20 years of service, were paid SSB, VSI or retired pay with calculations based on years of service before separation. Under the USFSPA a former spouse receives payments for life, without regard to years of "service".
REMARRIAGE OF A FORMER SPOUSE
There is no bar to remarriage of a former spouse concurrently with the receipt of USFSPA payments; nor is there any bar to multiple marriages and multiple collections of USFSPA benefits.
EXAMPLE: Since retired pay is awarded as 'marital property', payments to a former spouse cannot be terminated upon her/his remarriage. This means that funds appropriated by Congress as elements of the U.S. military compensation system can be (and are being) shared by non-military personnel, including foreign nationals. Multiple remarriages and multiple USFSPA awards are uncommon but not nonexistent.
The USFSPA is inconsistent with the treatment of the remarriage of former spouses under other government and survivor benefits systems
Retirement annuities payable to the former spouses of Foreign Service and CIA personnel are terminated upon remarriage prior to age 55 or 60 (dependent on specifics of the respective laws).
Annuities payable to DOD/SBP and Social Security beneficiaries are terminated upon remarriage before age 55.
Under the USFSPA, payments to abused former spouses are terminated upon remarriage
THE 'WINDFALL BENEFIT'
By failing to address the problem, the USFSPA permits the award of retired pay to a former spouse based on the military member's rank/rate/pay grade at the date of retirement, not at the time of divorce. This inequity has no parallel in the civilian sector where the status of the two parties at the time of divorce usually governs the settlement.
Ex-spouse groups justify this practice by insisting that spousal influence extends for the life of a career, whether or not a spouse is present.
EXAMPLE: A naval officer, divorced as a Commander, retires as a Flag Officer. The pay to be shared with his former spouse is calculated, based on the current pay for a Rear Admiral --not the pay of a Commander fifteen years earlier. This is fundamentally unfair since the former spouse had nothing to do with the Commander's advancement to Rear Admiral and, in fact, his divorce might have hazarded it.
STATUTE OF LIMITATIONS
The USFSPA does not provide any statute of limitations on the amount of time allowed a former spouse to claim benefits. Consequently, there have been many cases where a "years later" award and the assessment of arrearages has resulted in the bankruptcy of the military member. This has not only exacerbated the emotional and financial impact of divorce, but seriously impacted second families.
EXAMPLE: Belated USFSPA awards, many years after a divorce are not uncommon due to long delays in claiming USFSPA benefits not included in original divorce decrees. When accompanied by a court order to make up USFSPA payments "missed" during the period of delay, the amount due is frequently in excess of the financial resources of the military retiree. Some of these have been well over $500,000.
PROTECTION OF DISABILITY PAY
It was clearly the intent of Congress that disability pay be personal to the military retiree and not shared with a former spouse. This is evidenced by the USFSPA's definition of "Disposable Pay" which exempts disability pay. This prohibition has been widely circumvented, violated and/or ignored by State courts.
EXAMPLE: The simplest circumvention ( especially favored when the disability is 100 percent) is to award alimony in lieu of a share of retired pay--without regard to source.
OBLIGATIONS ACCOMPANYING THE RECEIPT OF RETIRED PAY
A military member receiving retired pay must remain in compliance with the Uniform Code of Military Justice, may have restrictions on employment and foreign travel, and may be involuntarily recalled to active duty. A former spouse, who draws from the same pay envelope, is subject to none of these constraints.
EXAMPLE: If a retired military member commits a felony, or assumes citizenship in a nation other than the USA, his/her right to retired pay is extinguished.
A former spouse may live where she/he chooses, commit crimes at will and still retain her/his eligibility to receive a share of military retired pay.
A retired military member's obligations to the federal government, and (under the USFSPA) to a former spouse, persist for life. The "services" rendered by the spouse--both to the military member and to the military service--terminate at divorce. Under the USFSPA the former spouse continues to receive payments for services not rendered.
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