Pressure builds for military divorce law reform

As recently reported by Newsmax, many military members are lobbying for the repeal or amendment of the military divorce law that currently allows ex-spouses of members to receive up to half their pension pay right up to the member's death. Spouses and former spouses of service personnel generally want the law to remain unchanged.

In 1982, Congress passed the Uniformed Services Former Spouses Protection Act, allowing state courts to treat military pensions as marital property that can be divided in a divorce proceeding. Under the law, an officer's spouse who was married during the entire 20 years of military service is entitled to 50 percent of those benefits. If the marriage overlapped the time of service by 10 years, the spouse is entitled to a share of the benefits accruing over those 10 years. State courts can order a former spouse be paid a share of the military retirement pay for the member's lifetime even if the spouse remarries.

Service member groups seek repeal or changes

Organizations such as the USFSPA Liberation Support Group advocate repealing the law altogether. They argue it discriminates against military members by mandating the division of retirement pay in ways that do not apply to most other federal employees, including members of Congress. They also point out that military retirement pay is compensation not just for prior military service, but also for continuing obligations as members of the country's military reserves. Under the USFSPA, former military spouses get to share in this pay without sharing the continuing obligations.

Alternatively, they seek changes to the USFSPA, including:

  • Eliminating lifetime awards of military pension pay, even if the former spouse remarries
  • Basing USFSPA payments on the member's rank/rate/pay grade at the time of divorce
  • Protecting the disability pay of a member from division in a divorce proceeding
  • Imposing a statute of limitations on the time for claiming USFSPA benefits

USFSPA supporters cite unfairness of not sharing in retirement pay

Those who support keeping the USFSPA without change, mainly spouses and former spouses of military members, point out that spouses make significant contributions to the partnership, sacrificing some of their most productive years to frequently relocate and support the advancement of their warrior partners' careers. Because the military pension is ordinarily by far the largest asset of the marriage, taking away a state court's ability to divide that pension would frequently leave the divorced spouse with nothing to start out on.

Negotiating a division of the member's retirement pay

Similar to settlements in civilian divorces, military couples who divorce can negotiate a division of the member's retirement pay as part of an overall settlement of such issues as child custody and alimony, depending on the law of the state where the settlement is reached. A spouse can agree to take a smaller percentage of the pension than she or he is entitled to under the USFSPA in exchange for something else of value. Similarly, a military member may agree to pay a portion of his or her pension to a spouse not married long enough to qualify for a share under the USFSPA.

Before negotiating, it is important that both the military member and the spouse be aware of the actual value of the pension. It is also important to retain a lawyer who can navigate between state family law and federal military law.

If you are a service member or a member's spouse involved in a divorce, you should contact an experienced military divorce attorney to help you with the unique questions that arise in military divorces.