THE LATEST INFORMATION,
REGARDING DIVORCE IN THE UNIFORMED SERVICES,
FROM THE
AMERICAN RETIREES ASSOCIATION
THE LATEST INFORMATION,
REGARDING DIVORCE IN THE UNIFORMED SERVICES,
FROM THE
AMERICAN RETIREES ASSOCIATION
Senator John Warner introduced three amendments to the USFSPA, as Sections 644, 645, 646 of the Senate National Defense Authorization Act for FY 2007 (S.2766). The Senate Armed Services Committee reported them to the Senate Floor on 9 May 2006 (S. Rpt. 109-254) where they were adopted without comment; they authorize the Pentagon to:
1. disregard the targeted marriage duration bar to involuntary allotting US Personnel retired from active duty pay as jointly earned marital property,
2. expand cost of living enhancements to dollar amount based awards and
3. discontinue notification of targeted US personnel, unless they formally request it.
A fourth provision, Section 622 of the original defense authorization bill (S. 2507), prohibits the popular family court practice of imputing retired from active duty pay as jointly earned marital property prior to retirement. This was subsequently withdrawn, in the Senate Armed Services Personnel Subcommittee, and not reported by the Senate Armed Services Committee to the full Senate.
House and Senate Armed Services Committee delegates are currently discussing S.2766 USFSPA amendments behind closed doors, since there are no USFSPA amendment provisions in the House National Defense Authorization Act, reported by the House Armed Services Committee, on 5 May 2006, and adopted by the House on 12 May 2006: Imagine that!
Fax your concerns to Chairman Hunter at (202) 225-9077 and urge him to "call for withdrawal of S.2766, Sections 644, 645 and 646", and "reintroduction of (S.2507) Section 622".
SEC. 644. EXPANSION OF CONDITIONS FOR DIRECT PAYMENT OF DIVISIBLE RETIRED PAY.
(a) Repeal of Certain Condition- Section 1408(d) of title 10, United States Code, is amended--(1) by striking paragraph (2); and(2) by redesignating paragraphs (3) through (7) as paragraphs (2) through (6), respectively.
(b) Effective Date-
(1) IN GENERAL- The amendments made by subsection (a) shall take effect on the first day of the first month that begins more than 120 days after the date of the enactment of this Act.(2) PROHIBITION ON RETROACTIVE PAYMENTS- No payment may be made under section 1408(d) of title 10, United States Code, to or for the benefit of any person covered by paragraph (2) of such section (as in effect on the day before the effective date specified in paragraph (1)) for any period before such effective date.
SEC. 645. AUTHORITY FOR COST OF LIVING ADJUSTMENTS OF RETIRED PAY TREATED AS DIVISIBLE PROPERTY.
(a) In General- Section 1408 of title 10, United States Code, is amended--(1) by redesignating subsections (i), (j), and (k) as subsections (j), (k), and (l), respectively; and(2) by inserting after subsection (h) the following new subsection (i):
`(i) COST OF LIVING ADJUSTMENTS OF DIVISIBLE PROPERTY- A court order under subsection (a)(2)(C) may provide for the adjustment of the amount, if expressed in dollars, payable from the disposable retired pay of a member at the same time and in the same manner as retired pay is adjusted to reflect changes in the Consumer Price Index under section 1401a of this title.'.
(b) Effective Date- The amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply with respect to court orders that become effective after the end of the 90-day period beginning on the date of enactment of this Act.
SEC. 646. NOTICE AND COPY TO MEMBERS OF COURT ORDERS ON PAYMENT OF RETIRED PAY.
(a) WAIVER OF NOTICE- Subsection (g) of section 1408 of title 10, United States Code, is amended--(1) by inserting `(1)' before `A person'; and(2) by adding at the end the following new paragraph:
`(2) A member may waive receipt of notice on a court order otherwise required by paragraph (1). The waiver shall take such form and include such requirements as the Secretary concerned may prescribe.'.
(b) COPY OF COURT ORDER UPON REQUEST- Such subsection is further amended--
(1) in paragraph (1), as designated by subsection (a)(1) of this section, by striking `(together with a copy of such order)'; and(2) by adding at the end the following new paragraph:
`(3) Upon the request of a member, written notice of a court order under paragraph (1) shall include a copy of the court order.'.
(c) EFFECTIVE DATE- The amendments made by this section shall take effect on the date that is 90 days after the date of the enactment of this Act, and shall apply with respect to court orders received on or after such date.
The trial court sustained a motion to modify a final divorce decree to include military retirement pay as jointly acquired property, which was reversed by the Court of Appeals. Certiorari was granted to answer a question of first impression. We find that, in the absence of fraud, a property settlement award, as opposed to an award for support alimony, cannot be modified in a post-decretal hearing.
The entire document can be read at: http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=1990+OK+88
Tom Philpott | May 26, 2006
Senators Vote to End Ex-Spouse Law's '10-Year Rule'
The Senate Armed Services Committee has voted to end the "10-year rule" used by the government for more than two decades to screen court orders seeking automatic payment of retired pay to former military spouses.
The change is one of three adjustments to the Uniformed Services Former Spouses Protection Act (USFSPA) in the Senate's version of the 2007 defense authorization bill (S 2766). All three are intended to streamline administration of the controversial 1982 law, said Senate staff.
If approved by the full Congress, the changes would be the first made to the military ex-spouse law in 14 years. They would ease how future court orders are handled for former spouses rather than past court orders.
The 10-year rule has required the Defense Finance and Accounting Service (DFAS) to turn away requests for automatic payment of retired pay to ex-spouses unless the couple had been married at least 10 years during which the service member completed 10 years of creditable service.
The rule's elimination "would solve a lot of problems," said Marsha Warthen, board president of Ex-POSE, a military former spouse support group. "We are contacted regularly by spouses who just missed the 10-year requirement."
The 10-year rule would end 120 days after the bill is signed. Retroactive sharing of benefits based on the change would be prohibited.
Change two in the Senate Bill would direct DFAS to comply with all court requests for making cost-of-living adjustments to ex-spouse shares of retirement. DFAS now applies COLAs only to ex-spouse shares set as a percentage of a retiree's annuity. COLAs are not applied to ex-spouse shares that courts state in dollar amounts. This change would apply to court orders that take affect 90 days after the bill is enacted.
The third change would end a requirement that DFAS notify retirees and provide them copy when DFAS receives a court order directing division of retired pay. The Senate would shave that paperwork burden by forwarding court orders only to retirees who had told DFAS they want to be notified.
Warthen said future ex-spouses will be most pleased to see the 10-year rule end. When DFAS is barred from assisting with automatic payments, courts order retirees to make payments directly to ex-spouses. But many former spouses can't "track down" retirees, she said.
"It causes great expense for spouses who have minimal income and minimal leverage to recoup [missed payments] or to go back to court for enforcement. Some of them just give up," said Warthen.
The 10-year rule also has been an irritant to retirees. If DFAS can't accommodate a court order, it continues to withhold taxes on full annuities, including whatever portion the retiree pays directly to an ex-spouse. This can complicate retiree plans to have ex-spouses share the tax burden.
The 10-year rule also can confuse lawyers, judges, retirees and spouses. The term suggests that retired pay can't be divided unless a marriage lasts a decade. In fact, the 10-year rule impacts only automatic payments DFAS. As many retirees will attest, divorce court judges can, and do, divide retirement as property for marriages of any length.
Frank W. Ault, executive director of the American Retirees Association, an advocacy group for divorced military retirees, said ARA supports the Senate changes. Indeed, "abolition of the 10-year rule was one of our recommendations," said Ault, referring to a package of legislative changes ARA drafted for Congress to consider last year. No lawmaker could be found to introduce it as legislation, however.
Ault said one ARA concern with the 10-year rule has been that without DFAS handling all court orders to divide retired pay, "we never really have known what the [USFSPA] population is out there. It's an advantage for us to know that" in pushing Congress to make more substantive changes.
DFAS says it now divides with ex-spouses the retired pay of 82,887 military retirees. That number includes 4,046 court orders received in 2005 that satisfied the 10-year rule.
The House and Senate continue to approach the USFSPA with caution, avoiding changes perceived as tipping the law in favor of either retirees or of ex-spouses. The rationale for the Senate bill changes are taken from a comprehensive review of USFSPA that Defense officials completed in 2001.
The committee's own report mimics the DoD study in finding "overwhelming justification" for abolishing the 10-year rule. It notes that no other known retirement system or plan carries such a restriction. It says repeal would prevent courts, lawyers, retirees and spouses "from mistakenly interpreting this rule as a prerequisite to allocation of retired pay."
Still not addressed by Congress, said Ault, "are the major problems that military people have" with the USFSPA. "They still resent having their pay called 'property.' They still resent giving it to a spouse for life for a marriage of minutes. They still would like to get rid of the windfall benefit," a reference to courts dividing retired pay without taking into account the affect of promotions and pay raises earned after the marriage dissolved.
And a growing number of service members, said Ault, resent court orders that force them to share retired pay before they actually retire. Both the House and Senate again this year have ignored a Defense Department request to ban court orders that involve such "imputation of retired pay."
"The [Senate] changes are constructive," Ault said, "but far below what's needed to get this law on track."
To comment, e-mail milupdate@aol.com, write to Military Update, P.O. Box 231111, Centreville, VA, 20120-1111 or visit: www.militaryupdate.com
The Pentagon's USFSPA Position - Exposed to the Harsh Light of Reality
Famed for his ability to deflect tough questions from the media and from Members of Congress, on June 29 Secretary of Defense Donald Rumsfeld was stopped dead in his tracks by a question from one of his own; a lady lieutenant colonel, who brought up a valid and vexing question about military retirement pay. During a DOD "town hall meeting, aired the world over, she asked him why she faces the prospects of having to pay a large chunk of her retirement pay to her much-wealthier ex husband. Why indeed!
The usually glib and facile Rumsfeld, uncomfortably facing a very public, televised moment of truth he'd rather not face, blinked. Summoning the only dodge he could summon, the Sec Def trotted out his best "Aw shucks" manner and asked "Is that a statute?" "I'm unaware."
Indeed, Mr. Secretary, "that's a statute". It's 10 USC 1408, the Uniformed Services Former Spouse Protection Act, and it's been on the books for more than 24 years. And yes, Congress deviously backdated it to avoid an inconvenient conflict with a Supreme Court ruling which held that military retirement pay could not be divided as property.
That statute, Mr. Secretary, is devastating the morale of your troops. Though DOD has hidden the law under the rug for all those years, word of this DOD back-stab is finally reaching the field. In this global war on terror, in this era of back-to-back deployments to battle insidious terrorism, the very troops tasked to accomplish those dirty missions for America are subject to a discriminatory law mandating that they hand over up to half of their retirement pay permanently to a former spouse. And that's in addition to alimony and child support. Only military members, alone among all Americans, are subject to such a law providing lifetime benefits to former spouses above and beyond those available to the public at large and continuing even after the remarriage of the former spouse.
The Secretary's dodge won't wash.
His answer feigning ignorance of the law can be interpreted two ways. Either he has been shielded by his underlings from the grim truth of what the USFSPA is doing to troop morale, in which case he's made to look incompetent, or he took the unwise path of pretending not to know in order to cover his tracks. In other words, he lied.
Which of these is the more likely?
In 2001, on Rumsfeld's watch, the Department of Defense provided Congress a voluminous report, delivered two years late to Capitol Hill, describing why the law is good for the troops. Baloney! The report silently, and without comment, overturned the "on-the-Congressional-Record" position of prior administrations regarding the USFSPA.
And as you read this, Rumsfeld's lawyers are scrambling to protect him from a federal lawsuit which names him, by name, as defendant, and which challenges the constitutionality of the law. That case is alive and well in Federal District Court in Alexandria, VA, and if Mr. Rumsfeld wants us to believe that he doesn't know about the USFSPA, he must think we're all pretty stupid. This case is far from resolution and if Mr. Rumsfeld doesn't know his personal chestnuts are in the fire, we think he's pretty stupid.
Clearly Mr. Rumsfeld does know about the USFSPA.
Just as clearly, his tap-dance on camera on June 29 was a disingenuous attempt to avoid public airing of the Department's long-standing support for an ill-conceived law, which DOD leaders support at their peril, and which decimates the morale of military career personnel, just when we need them most.
Though DOD's civilian lawyers fabricate fanciful theories for the Department's aggressive and inexplicable support for the USFSPA, in fact the USFSPA created a unique, unprecedented, discriminatory, and wholly unnecessary body of law for military spouses only, on top of their rights comparable to other divorced spouses. The USFSPA may have been well intentioned, but it has harmed far more than it has helped, and now more than 150,000 of America's defenders have had their old-age security cashiered by it. Some have been forced into bankruptcy and all are blindsided in divorce by DOD's dirty little secret. The number of Americas finest who have been duped and stabbed in the back by their own chain of command rises daily.
Wake up, Mr. Rumsfeld! Recruiting is down. Divorces are up. Military divorces, until recently less frequent than the general population, now exceed the general rate. American troops are being sent into harms way with stressful frequency, against an insidious enemy which beheads and car-bombs innocents. Throughout it all, the Department maintains it's "head-in-the-sand" attitude about the USFSPA and that law's pernicious effects on troop morale.
Maybe it's even worse than "head-in-the-sand"; maybe the Department shovels the sand over its own head and hides from the unpleasant truths about the USFSPA. It has for more than 24 years failed to provide briefings and orientations to the troops to tell them that they may dedicate a lifetime of honorable, often dangerous service to America only to have their retirement security handed over to a third party civilian who took no oaths and never stood in harms way. This, remember, is the same DOD which clandestinely reversed the policy position of previous administrations in its 2001 report to Congress.
Even more indicative of DOD sentiment, in the current lawsuit in federal court, Mr. Rumsfeld's lawyers fought (unsuccessfully) to exclude testimony from a soldier in Iraq. And Mr. Rumsfeld says he didn't know?
Are military families important? Of course they are. Do they deserve more preferential treatment than their military sponsors? What theory could possibly justify that? Do military spouses deserve lifetime monetary awards that civilian spouses don't get? Why? Is the playing field level in military divorces? Absolutely not. Why the Sec Def thinks that's a good thing is known only to him. As the lawsuit progresses, maybe he can explain it to the judge, and to the troops who wonder. And to the courageous lady lieutenant colonel who nailed him on June 29.
Until the Congress amends the USFSPA to eliminate its anti-military bias, or until it's declared unconstitutional by the US Supreme Court, it will be the single most demoralizing factor to the career military force. Mr. Rumsfeld knows that, and he knew it on June 29.
"Still serving proudly", Colonel George W. Tate, US Army retired
An Army officer's complaint during a Pentagon "town hall" meeting might breathe new life into an issue Congress has ignored for years: a 1982 law that allows state divorce courts to divide military retirement as marital property, jointly earned.
For the entire article, please click here for the Fleet Reserve Association article.
The USFSPA-Lawsuit website has a twofold purpose:
1. To inform interested parties of a planned lawsuit to declare unconstitutional, Title 10 U.S.C. Section 1408 et seq., The Uniformed Services Former Spouses' Protection Act (USFSPA), so that the lifetime retirement/retainer compensation of career military personnel is no longer subject to division amongst ex-spouses/third parties that never served in the United States Armed Forces. Should the lawsuit be successful, the proceedings would also end the divisions that are already taking place, regardless of the former spouse's present marital status.
2. Solicit names and contact information of those USFSPA victims interested in participating in the lawsuit. These names will be turned over to a law firm that has agreed to represent the litigants.
WHAT DO YOU DO?
What is urgently needed now are statements of interest from eligible potential litigants. The ARA is not a litigant in this lawsuit and participation by ARA members is a matter of personal choice.
CONTACT ULSG MEMBER
John Noone
317 Santa Barbara
Irvine, CA 92606
Phone: (949) 653-8465
Email: John.Noone@USFSPA-Lawsuit.Info
COMMUNICATE !!!
The key to a career in Congress is constituent support. Every member of Congress must affirm this every two years in order to assume or resume membership in the legislative branch of the U.S. Government. For this reason, members of Congress are generally very sensitive to the needs and views of the people they serve.
Your member of Congress is not a mind reader, He/she can't know what you think or want unless you tell him/her. For USFSPA victims (casualties) at this juncture, it means telling your Congressman why he/she should co-sponsor (or at least support ) H.R. 1111 and advocate its consideration by the Total Force (Personnel) Subcommittee of the House Armed Services Committee. You may do this via letter, telephone FAX , email-or all four.
The letter is the most popular choice of communication with a Congressman. The following address will serve for ANY member of Congress (if you do not know the name of your Representative or Senator, please "click here" to request the information):
The Honorable (full name)
House of Representatives
Washington, D.C. 20515
Dear Mr./Mrs./Ms. (last name):
· The first paragraph should state the purpose of the letter
· Then identify the issue(s) or specific piece of legislation which has prompted your writing.
· Be courteous and to the point. Use examples or your personal situation to support your position.
· Keep the letter as short as possible - preferably one page.
FOLLOWING ARE SAMPLE LETTERS. Verbatim use is discouraged inasmuch as repeated appearances of the same text would raise questions of sincerity and authenticity.
Dear Mr.___________________:
The Uniformed Services Former Spouses Protection Act (USFSPA); 10 USC 1408 et seq has been in existence for over 20 years. During that time its application, in state divorce courts, has inflicted at least as many hardships on military members and their second families as the benefits provided for the former spouses it was intended to protect. Moreover, a law designed for the society of military families of the early 1980's has been overtaken by events:
· The USFSPA appears to have been crafted primarily for the benefit of civilian females married to male commissioned officers. Although about two thirds of the population of former spouses are those of enlisted personnel, only a small percentage of them are enjoying the military medical care and base privileges available to 20/20/20 former spouses in the officers community.
· It is clear that Congress was focused, in 1982, on the protection of the female member of a military marriage. The only pronoun used in the USFSPA is "his" which appears five times. The growth of the percentage of female members of the armed services was neither anticipated nor accommodated.
· The small number of military spouses working outside the home in 1982 has grown to over 60 percent in 2003.
The most egregious feature of the USFSPA is its provision to divide military retired pay as marital property. This permits a former spouse to remarry and still receive a share of her/his former spouse's retired pay. Another glaring inequity is that the military member must serve a minimum of 20 years to be eligible to receive retired pay while his /her spouse qualifies for a share of it immediately upon marriage
The USFSPA does not take into account the vast differences between the characteristics, scope and duration of the "services" to the nation performed by the respective marital partners. The marital partner who goes in harms way receives the same consideration at the retired pay window as does the non-combatant.
By its omission, the USFSPA facilitates the payment of a 'windfall benefit' to a former spouse who benefits from post-divorce promotions where spousal influence was no longer a factor. Another omission is a statute of limitations on the amount of time allowed a former spouse to claim USFSPA benefits after a divorce. This can render the USFSPA a lifetime threat to a second family.
Finally , although it is clear that Congress intended that disability pay not be shared, the USFSPA's protection of it has been circumvented, violated and ignored by state courts and is in conflict with other legislation.
Would you please acquaint yourself with this legislation and (CHOOSE)
Co-sponsor it?
Support it in subcommittee?
Support it on he floor of the House?
Urge Chairman McHugh of the Total Force Subcommittee to consider it?
Sincerely,
The Honorable ________________________
House of Representatives
Washington, D.C. 20515
Dear Congressman _____________________
I am advised that Senate and House Armed Service Committee delegates are currently discussing adoption of S.2766, Section 644, 645 and 646, behind closed doors. I respectfully urge you to formally announce your opposition to this, well before November 7th 2006.
Still serving proudly, (name)
(mailing address)
(phone number)
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