Tom Philpott: Military Update
The Department of Defense says it does not support imposing new limits on the number of years that former spouses can receive court-awarded shares of military retirement.
Such limits are at the heart of the Uniformed Services Divorce Equity bill (HR 1111), introduced by Rep. Cass Ballenger, R-N.C., to better protect military retirees when courts divide their annuities as property in divorce.
DoD opposes other bill provisions including one that would dictate the size of ex-spouse retirement shares in future divorces and another to set a two-year window for ex-spouses to seek a share of military retirement after their divorce or forever forfeit that right.
The department does support two HR 1111 provisions, said William J. Haynes II, DoD general counsel, in an April 8 letter to the House Armed Services Committee.
One would end what retirees call “windfall” compensation to ex-spouses when a former spouse court-ordered share of retirement is applied to gains in retired pay from promotions earned and extra years served since their divorce. The second provision would block state courts from ordering service members to begin paying ex-spouses amounts equal to their share of retirement before members actually retire.
Both provisions would apply only to divorces that become final after the bill is enacted.
The limited DoD endorsement doesn’t mollify retired Navy Capt. Frank Ault, executive director of the 600-member American Retirees Association. ARA has worked for almost two decades to repeal or overhaul the 1982 Uniformed Services Former Spouses Protection Act (USFSPA), which allows state courts to divide military retirement as property in divorce settlements.
DoD’s stand on HR 1111 attacks its “central theme,” Ault said, which is to match the length of time current and future retirees are required to share their retired pay to the duration of the marriage while members were in service.
Only ex-spouses from marriages that lasted 20 military years would qualify for a lifetime share. If a marriage lasted 10 military years, the obligation to share retirement would last 10 years. For future divorces, all payments should end upon the ex-spouses’ remarriage. Payments to current ex-spouses would come under the time-matching rule but all ex-spouses would be guaranteed at least 24 more months of payments after the bill is enacted.
HR 1111 is the fifth piece of legislation over the last two decades to try to modify the USFSPA to improve treatment of retirees, Ault said. With each compromise made to try to win DoD support, Ault said, the department seems to become a stronger advocate for ex-spouses.
In 1990, Ault said, a senior Defense official testified in favor of ending the division of military retirement when a former spouse remarries. The department now opposes the remarriage provision. That same official 14 years ago said courts shouldn’t view military retirement the same as civilian pensions. Yet Haynes wrote April 8, Ault noted, that, “Military retirement is similar enough to other types of retirement programs that it does not merit being treated differently than virtually all other retirement benefits.”
“It appears,” Ault said, “the Department of Defense favors the welfare of ex-spouses (over) military members.”
Doris Mozley, an advocate for former spouses, also was disappointed with DoD’s stand on HR 1111, but for supporting even two of the provisions.
“If the wife has to wait another 10 years for her share of the pension,” Mozley said, “that means he is using her capital for 10 years without pay to her.” The same ex-spouse would be more deeply wronged, she said, if her years of waiting had no positive impact on her share of retirement.
Introduced a year ago, HR 1111 has 21 co-sponsors, a number Ballenger must view as “a major embarrassment,” Mozley said The Richmond, Va., lawyer assists former spouses with the help of a small group she calls the Committee for Equality and Justice for Military Wives.
Ault said the General Counsel letter is a setback for meaningful USFSPA reform. One trend that, in time, will favor major changes is the rising number of “female victims” among military retirees, he said.
“A law built to protect women is now hurting women,” Ault said.
Tom Philpott can be contacted at Military Update, P.O. Box 231111, Centreville, Va. 20120-1111, or by e-mail at: