Pressure is growing among advocacy groups to revise a military divorce law that can grant ex-spouses of U.S. warriors up to half of their retirement pay right up to death.
Several states are moving to no longer award lifetime alimony or exempt a portion of their own retirement funds from division. As such military members are objecting to a federal law that allows for what amounts to lifetime alimony that does not stop even if the former spouse remarries or goes on to a more successful career.
The 1982 Uniformed Services Former Spouses Protection Act (USFSPA) provides states with the authority to treat non-disability military retirement pay as property and can divide it by up to 50 percent when married couples separate.
Opponents of the law say they shouldn’t be automatically forced to forfeit to their ex-spouse in perpetuity a sizeable amount of their retirement benefits earned over a 20-year career serving in harm’s way.
They say their retirement pay is not only compensation for the rigors of military service, but for their continuing obligations to their country. Military retirement is not a full retirement, they point out, but a reserve status that amounts to less pay for fewer services. They note that few other federal employees are subject to the military’s laws related to divorce, not even the members of Congress who wrote and passed the bill.
“We just don’t think the military should have special rules against it that don’t apply to others,” Larry White, national director of the USFSPA Liberation Support Group based in San Antonio, Texas, tells Newsmax.
Supporters of the law feel entitled to a share of the benefits because they have contributed significantly to the partnership, sacrificing some of their most productive years to frequently relocate and support their spouse’s advancement.
“A lot of people, civilian and military, feel they have been treated unfairly in the divorce process. That’s not new,” Diane Mazur, a law professor with the University of Florida, tells Newsmax. “The military angle puts a different spin on things because both sides have an extra reason to think they've been wronged, or an extra reason to think they deserve special treatment.
“The military member: ‘I put my life on the line, so that money is mine.’ The spouse: ‘I gave my life to the military too, sometimes under difficult circumstances, and so I've earned part of that pension. It's not fair for me to have to start out with nothing.’
“A military pension attracts a lot of attention because usually that will be the asset of greatest value, by far,” Mazur said.
Congress passed the USFSPA in 1982 to reverse a 1981 Supreme Court decision that upheld a ban on dividing military retirement pay in divorce settlements, as has been traditionally allowed with civilian defined benefit plans such as 401ks or IRAs.
Under the law, the spouse of an officer who was married during the entire 20 years of service would be entitled to half those benefits. If the marriage overlapped the time of service by 10 years, the spouse would be entitled to a share of the benefits accrued over those 10 years.
Frustrating opponents is that there no minimum time limit of time for a couple to be married before a spouse qualifies for a portion of the benefits.
Critics of the law concede that it has historically been necessary. Advancing a spouse’s military career left them to almost single-handedly raise their children, look after the house, attend events and participate in any number of social obligations.
Once the marriage ended, they were left with no education or skills that would enable them to immediately rejoin the workforce.
However, in recent years they are able to earn degrees while married to a service member, work full- or part-time jobs to contribute to their own retirement and create a life of their own outside of their marriage.
“The current retirement system has been around since the 1940s, but the world has changed dramatically since the 1940s," Military Officers Association of America Deputy Director of Government Relations Phil Odom tells Newsmax.
Similar to civilian settlements, separating military couples can negotiate any number of arrangements depending upon the state where the settlement is reached, including child custody and visitation, alimony, and the distribution of retirement benefits, says John Carney, a Dallas-based lawyer whose firm represents spouses in military divorce settlements.
Spouses can accept a lump sum payment instead of a lifetime of retirement pay benefits. They can negotiate a 401k or IRA in lieu of alimony. They can split custody of their children in exchange for a combination of concessions. Military retirement pay is often distributed according to a formula, but there is a no requirement.
Carney said that’s why it’s important to identify lawyers who can navigate between the “awkward combination between state and federal law.”
“As far as divorce, as long as the parties agree to something, that’s what it’s going to be,” he tells Newsmax. “You’re always welcome to go to court and try to prove your case. But there is a reality, and it is my job to help them determine what that reality is.”
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