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UNIFORMED SERVICES FORMER SPOUSES PROTECTION ACT(USFSPA)
POINT PAPER
1 January 2006

The USFSPA was enacted in September 1982, ostensibly to protect the deserving former spouses of members of the uniformed services in divorce court.

• The most important (and contentious) provision of the USFSPA is that it permits the treatment of military retired pay as jointly earned marital property in a divorce action. This flaunts the decision of the U.S. Supreme Court in Mc Carty vs. McCarty in June 1981, wherein it was stated: "The military retirement system confers no entitlement to retired pay to the retired member's spouse, and does not embody even a limited 'community property concept'" Congress attempted to nullify this decision by declaring the effective date of the USFSPA to be one day prior to McCarty. This declaration has never been challenged in court.
• Courts may award, and the government will pay, up to 65 percent of a military member's retired pay to a former spouse. There is no bar to additional awards (e.g. of alimony and child support) which can aggregate to 100 percent. If the couple was married, concurrently with military service, for a period of at least ten years, USFSPA payments to the former spouse may be made directly by the government.
• USFSPA payments must be made until the death of either the donor or the recipient, even if the ex-spouse remarries.
• There is no bar to multiple remarriages and multiple collections of USFSPA benefits.
• There have been 23 amendments to the USFSPA since its enactment: all, except two, via floor amendments without public disclosure or debate. 18 of these have benefited ex-spouses, 1 has benefited military members and 4 have impacted both sides equally.
• Legislation to reform the USFSPA has been introduced in four Congresses since 1990. None of the bills received public hearings or committee consideration.
• Section 643 of the Defense Authorization Act for FY 1998 directed the DoD to review the history of the USFSPA and report results by 30 September, 1999. This report was not delivered until the week of 3 September, 2001---one week prior to 9/11. In the interim, Congress deferred action on USFSPA reform while, reportedly, awaiting the DoD report. However, neither Congress nor the DoD has taken any action since the delivery of the report.

On 24 May 2001, Chairman Bob Stump of the House Armed Services Committee and 16 others introduced H.R. 1983, The Former Spouses Equity Act of 2001.

H.R.1983 had 73 co-sponsors.

H.R. 1983 would have:

• 1. Terminated USFSPA payments upon the remarriage of the former spouse.
• 2. Eliminated the "Windfall Benefit" emanating from the determination of USFSPA benefits based on the rank/rate/pay grade at the time of retirement instead of the date of divorce
• 3. Prescribed a statute of limitations on the time allotted a former spouse to petition for USFSPA benefits, if overlooked during the original divorce proceeding
• 4. Reiterated and reinforced the USFSPA's protections of disability pay which are being violated, ignored and circumvented in the courts.

On 6 March, 2003 Rep. Cass Ballenger (R-NC) and ten others introduced H.R. 1111, The Uniformed Services Divorce Equity Act of 2003.

H.R.1983 had 23 co-sponsors.

H.R. 1111 would have:

• 1. Quantified the share of retired pay payable to former spouses. Provided a formula based on (i) years of marriage while the member was qualifying for retired pay; (ii) time credited for retired pay. Applied to divorces occurring before or after enactment. Provided an exception for voluntary spousal agreements.
• 2. Limited the duration of payments.
  • For divorces occurring after enactment:
    • Where the time married while the member was on active duty (or, in the case of reserve/National Guard, was earning retirement points) was less than 20 years, payments would be made for the number of years married while the member was qualifying for retired pay, or, until the former spouse remarried, whichever occurred first.
    • Where the time married while the member was on active duty was 20 years or more, payments would continue until the death of the member or former spouse, whichever occurs first. ·
  • For divorces occurring before enactment:
    • If the length of the marriage while the member was on active duty was less than 20 years, payments would continue for the length of the marriage while the member was on active duty.
    • If payments had already been made for the number of years of marriage while the member was on active duty, payments would continue until two years after enactment and then end.
    • If the payment period ended within two years of enactment, payments would continue until the end of the two-year period after enactment.
    • If the length of the marriage while the member was on active duty was 20 years or more, payments would continue until the death of the member or former spouse, whichever occurred first.
• 3. Windfall benefit. Eliminated the "windfall benefit" but applied only to court orders issued after date of enactment (prospective application only).
• 4. Statute of limitations. Provided a two-year statute of limitations, applying only to court orders issued after date of enactment (prospective application only). However, courts would be prohibited from ordering payments in arrears for more than two years.
• 5. Protection of disability pay. Absolute prohibition against payment of disability pay to former spouses, including garnishment under the Social Security Act, of VA disability compensation received in lieu of waived retired pay. (Child support excepted).

The following facts were considered in developing H.R. 1983 and H.R. 1111:

• 1. A military member is not 'vested' in retired pay until a minimum of 20 years of creditable service.
• 2. Spouses are vested in military retired pay, for life, immediately upon marriage
• 3. There are vast differences between the respective characteristics, scope, and duration of the "services" performed by the respective marital partners
• 4. The obligations of a former spouse to the federal government, and to her/his former military marital partner, terminate upon divorce.
• 5. The obligations of a retired military member to the federal government and to his/her former spouse (under the USFSPA) persist for life.
• 6. The spouses of military members have available to them, in divorce court , all the protections available to any other American spouse.

The 107th and 108th Congresses ignored H.R. 1983 and H.R. 1111 and the 109th Congress continues to express Congress' timeworn reluctance to address the USFSPA's obvious inequities and justifications for its reform.

The ARA has drafted legislation for consideration by the 109th Congress but cannot find a sponsor.

The DoD does not brief military service personnel regarding the existence and/or potential impact of the USFSPA

The DoD's statements of policy regarding divorce in the military, indicate that its primary concerns are not for military members , but for the people they marry.

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Last updated 17 December 2005
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