The Uniformed Services Former Spouses Protection Act (USFSPA) Reform
THE MAIN ISSUES
A. Imbalance in Eligibility to Receive Retired Pay
B. The Windfall Benefit
C. A Statute of Limitations
D. Protection of Disability Pay
A. SHOULD THERE BE DIFFERENCES IN THE REQUIREMENTS FOR ELIGIBILITY TO RECEIVE MILITARY RETIRED PAY?
The military member must have at least 20 years of creditable service in order to be eligible to receive retired pay. On the other hand, the USFSPA provides that his/her spouse is eligible to receive a share of that pay immediately upon marriage.
The spouse of a military member has long been recognized as serving in a role important to national security. However, there are significant differences in the "services" performed by the respective marital partners. Certainly duty on the home front cannot be compared with the duties performed by the military member who goes in harms way.
The military member's obligations to the federal government (and if impacted by the USFSPA, to his/her former spouse) persist for life. ALL obligations of the spouse of a military member, whether to the government or to her/his spouse, terminate upon divorce.
"Early outs" in the military were paid on the basis of time served. Under the USFSPA a former spouse receives payments for life, regardless of the length of "service".
B. SHOULD USFSPA PAYMENTS BE BASED ON THE MILITARY MEMBERS PAY GRADE AT THE TIME OF DIVORCE OR THE PAY GRADE AT THE TIME OF RETIREMENT?
Because the framers of the USFSPA did not anticipate it, and because civilian judges often err in their treatment of military matters, ex-spouses frequently benefit from the USFSPA awards based on the military members' pay grades at the time of retirement, not on the dates of divorces which occurred while the members were still on active duty or working their way up the ranks of the reserves. This inequity, called the "Windfall Benefit," 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 frequently justify such awards by insisting that spousal influence extends for the life of a career and that any upgrades in rate/rank or rate of pay derive directly from that early influence which may persist for 20 years or more.
The elimination of the "Windfall Benefit" would directly address the issues of fairness and equity and would provide the equal justice under law guaranteed by the Constitution for military and civilian personnel alike. More than that, it is plain, everyday common sense.
C. SHOULD THERE BE A LIMITATION ON THE TIME ALLOWED AN EX-SPOUSE TO CLAIM BENEFITS UNDER THE USFSPA?
At present, there is no limitation on the amount of time allowed an ex-spouse to claim USFSPA benefits if not awarded during the original divorce proceedings. It is not known whether this is due to oversight, ignorance, or some other factor.
Certainly the USFSPA has been in existence long enough (since 1982) to permit dissemination of information about the Act throughout the legal community -- and divorce sans legal counsel are rare, indeed.
The only pattern that has surfaced in the sight of the ARA is a vengeful action by an ex-spouse upon the announcement of a pending remarriage of her/his former marital partner. This generally produces the unhappy circumstance of acquisition of a marriage license and receipt of a subpoena on or about the same day.
Ex-spouse groups have argued that the spouses of military members -- particularly those from foreign shores -- have difficulty in learning about the USFSPA. In this regard, they share a common problem with their military mates whose services not do brief them on the existence or impact of the USFSPA.
A commonly accepted tenet is that 'ignorance of the law is not excuse." In divorce court, the consequences of the ignorance of either or both parties is usually offset by the knowledge of counsel who IS informed. Few would argue that both parties to a divorce should strive for a status where both can 'get on with the rest of their lives' without the threat of unexpected incursions on their wealth and well-being. Two years provides more than sufficient time to remove the USFSPA as a threat to attaining that goal.
D. SHOULD DISABILITY PAY BE PROTECTED BY THE USFSPA?
There are some loopholes in the USFSPA's protection of disability pay -- and there is a growing number of instances where existing protections are being ignored or circumvented.
Military veterans are unique in American society in that they pay their own disability pay. The only advantage they enjoy is that that portion of their retired pay attributable to disabilities is not taxed. Legislative proposals for the concurrent receipt of regular retired pay and disability pay are before Congress, but suffer an uncertain future.
The USFSPA provides that disability pay should be deducted in calculating the amount of "disposable pay" which is the amount of retired pay subject to division in a USFSPA award. There has long existed considerable pressure from ex-spouse groups for abandonment of the protection of disability pay. The arguments make about as much sense as the 'spousal influence forever' argument for the "Windfall Benefit." Ex-spouse pressures may ease a bit should concurrent receipt become a reality. This assumes that disposable pay would be draws from the non-disability side without deducting disability pay. However, with past experience as an indicator, it is not unrealistic to expect that the ex-spouses will eventually mount an attack on BOTH of the pay windows.
Child support will continue to be assured, if not by a judge's order at the time of divorce, then by the garnishment of disability pay provided for by Title 42 of the US Code.
It will be the job of USFSPA reform advocates to strengthen the USFSPA's protection of disability pay, which, by no stretch of imagination, can be claimed to have been earned by an ex-spouse.