U.S. Military (Ret.): Disparity in state courts’ interpretation of Former Spouses’ Protection Act - Military Retirement - Navy Times

U.S. Military (Ret.): Disparity in state courts’ interpretation of Former Spouses’ Protection Act

My recent column on the Uniformed Services Former Spouses’ Protection Act provoked a flood of responses — as much as I’ve ever received for one column.

I heard from active-duty troops, former spouses, current spouses, retirees who fall under USFSPA and retirees who don’t.

A common thread in the responses is a perception of unfairness in some aspects of the law. One commonly expressed frustration has to do with former spouses having lifetime access to a portion of a member’s retired pay regardless of how many times they remarry.

The USFSPA, enacted in 1982, came about in an era — rapidly fading even then — when most military wives did not work outside the home and devoted themselves largely to supporting the military careers of their husbands.

The idea behind the law was that having sacrificed so much in that fashion, wives who were later divorced should be entitled to a portion of their former husbands’ military retired pay as compensation.

Former spouses have told me that they still feel they have earned a portion of their former service member’s retired pay for handling multiple moves, putting off their own career aspirations with each move, and filling the role of both mom and dad when the military member was deployed.

But 28 years later, when dual-income families are the norm, I think it’s still legitimate to ask whether the USFSPA fully serves its original purpose.

A few years ago, when the Defense Department was asked to review the USFSPA for clarity and balance, its resulting report walked a fine, neutral line that took pains not to rock the boat on what is, admittedly, a highly charged and volatile issue.

Compounding the problem for retirees is that few members of Congress have served in uniform and know what military life is about.

In sifting through the responses I’ve received on this topic, it seems to me that the core issue is disparity among state courts in how they interpret and apply the USFSPA. Some retirees say they were never touched by a state court, while others gave up the full 50 percent of their retired pay allowed by law.

State courts generally take a dim view of federal mandates on their authority. But USFSPA is, after all, a federal law, and it’s not unreasonable to ask Congress to clarify what are and are not permissible actions for state courts to take under that law.

We can start with this: If the original idea behind the law was to provide support to a divorced spouse left alone and bereft of a source of income, then shouldn’t that support cease if the former spouse remarries?

———

Retired Command Master Chief Alex Keenan served 28 years in the Coast Guard. E-mail him. And track the inflation rate that determines the annual retiree COLA on our site.