Guest Blog: Will Oklahoma be first to discriminate against military spouses in divorces?

From time to time, we will use the OK Policy blog to post submissions we receive from Oklahomans who have interesting perspectives on important policy issues for the state. This submission is from Karin Brandenburg, an Oklahoman who works in the homeland security field and counts seven Oklahoma military families in her family lineage, and Wanda deBruler, an Oklahoman who monitors legislation that affects policy on families. The opinions stated below are not necessarily the opinions of OK Policy, its staff, or its board. This blog is a venue to help promote the discussion of ideas from a variety of different points of view.

A bill that could have a huge impact on 400,000 military families in Oklahoma fell short of passage during the last legislative session but is still under consideration. Anyone concerned with the welfare of Oklahoma families should be paying this issue close attention.

Oklahoma HB 1053 is a bill that proposes to change how military pension is regarded in divorce from “property” to “alimony”. Currently, military retirement like all other occupations is considered “property” and divided accordingly. Once property is divided, each recipient can do with it as he or she wishes. The bill changes military pension to be more like “alimony” which terminates upon the former spouse cohabitating with a member of the opposite sex or remarriage. Additionally, the changes in HB 1053 changes are retroactive to 1981.

HB 1053 is viewed by national-level military family laws experts as a classic special interest bill seeking to use the power of the state to favor one class of persons (military service members and retirees) over another class of person (military spouses). The bill carves out military spouses in Oklahoma to be stripped of equitable pension division rights should a divorce occur. This is a move that no other state in the nation has taken.

HB 1053 was introduced in the 2009 Oklahoma Legislative Session by Representative Gary Banz and Senator Patrick Anderson. The bill died in conference committee at the very end of session. An Interim Study on the subject was held September 10, 2009. Click here for the Oklahoman article.

Speaking for the bill were three retired military men who were divorced and their former spouses remarried. Opposing the bill was Glenda Collins, a divorced former career military spouse, and Professor Robert Spector who has taught family law 30 years and teaches courses on Family Law, Children and the Law at the University of Oklahoma. Professor Spector referenced in his testimony that the Oklahoma Bar Association (OBA) Family Law Section has reviewed the bill and does NOT support the bill. He stated this was “bad family law policy” because it attempts to convert “property” to “alimony” and no other pension is treated as alimony. Furthermore, Professor Spector stated that the draft bill has constitutional issues because of the retroactive clause affecting divorce decrees that allocated military pension awards as “property” to spouses.

“In addition to Professor Spector, three other nationally renowned lawyers have reviewed the bill and provided written detailed analysis which clearly sets out that the bill is conspicuously discriminatory against military spouses, depriving them of now common family law rights afforded currently to all other occupational spouses in the state. Click here to read their comments and here for comments from the Pension Rights Center and the National Women’s Law Center.”

So what does this mean to you? Oklahoma’s divorce rate, poverty rate, and the state budget for allocation of funds for social services can be expected to increase while service members, sometimes Oklahomans and sometimes not, will enjoy preferential treatment in Oklahoma at the expense of all Oklahoma taxpayers. If the children of the marriage are in the care of the impoverished former military spouse, the number of Oklahoma’s children living in poverty can be expected to increase. Military spouses, on the other hand, will want to avoid a divorce action in Oklahoma, perhaps prolonging, until a transfer of military assignment out of Oklahoma, their stay in those marriages where domestic violence is occurring. Because Oklahoma would be the only state in the country offering preferential treatment to service members, it can be expected that non-Oklahoma service members seeking a strategic advantage in family law will look to Oklahoma for “spousal dumping”.

What can you do? Get educated. Take Action: Tell Others and Contact Your Legislator.

ABOUT THE AUTHOR

Paul Shinn

Paul Shinn is a Budget and Tax Senior Policy Analyst with OK Policy. Shinn has held budget and finance positions for the Oklahoma House of Representatives, the Department of Human Services, the cities of Oklahoma City and Del City and several local governments in his native Oregon. He's also taught political science and public administration at the University of Oklahoma, University of Central Oklahoma, and California State University Stanislaus. While with the Government Finance Officers Association, Paul worked on consulting and research projects for the U.S. Environmental Protection Agency, the U.S. Department of Transportation, and several state agencies and local governments. He also served as policy analyst for CAP Tulsa. He holds a Ph.D. in Political Science from University of Oklahoma and degrees from the University of Oregon and the University of Maryland College Park. He lives in Oklahoma City with his wife Carmelita.

31 thoughts on “Guest Blog: Will Oklahoma be first to discriminate against military spouses in divorces?

  1. This bill would treat military divorces the same as every other branch of our state and federal government.

    It would stop the unfair treatment military members have had since 1981.

    How would not giving a spouse (male or female alimony)for the rest of the military members life improvish children? This is not child support…

  2. Ms.Collins and her rhetoric are filled with anger and hatred towards military spouses who have divorced and left the former spouse behind.What she does not say is no other state in this nation awards a”pension” for a lifetime.She also fails to mention that it is not the responsibility of a former spouse to support another for a lifetime including her remarriage and new husband as USFSPA has done for years.No other career rewards a former spouse for life regardless of the circumstances of the divorce.Ms.Collins is trying to convince everyone that the “poor military wife that must stay at home with the children “as a normal picture of military wife.What she fails to say is that many are professionals with degrees and their own careers. Times and society have changed. Passage of this Bill will only impoverish the military member as it has for over twenty five years and favor the former spouse for a lifetime of unearned income.USFSPA has indeed discriminated against our veterans.

  3. My ex utilized my Reserve week ends to shcedule rendezvous with her married lover. She refused to obtain employment when our son reached school age. For this she gets a chunk of my pension. She went after my SBP and her attorney attempted to use fuzzy math to calculate what is being taken from me. Fortunately DFAS rejected the fuzzy math calculation and there will be no SBP.

  4. I find your BLOG as humorous as Professor Spector’s (your main reference for integrity) testimony to the legislators. I attended that meeting also and he was certainly full of himself!
    It’s intellectuals like him that helped me to decide to stop pursuing a law degree because as they are taught “It’s not about what’s right or true, It’s about winning!” I.E., check your concience and morals at the door!

    I also enjoyed seeing Senator Lassiter roll his eyes and down play every common sense point being made but when the OU “windbag” gets up to speak, he takes on a serious tone as though he cares.
    I do admit he does care, he cares about lining his pockets with the monies derived from divorces of soldiers located at Tinker Air Force Base and the surrounding Reserve units.

    One thing I have found to be most interesting during this process is this.

    Why would Senator Steve Russell recuse himself from voting? Answer, because he is a man of integrity!
    As a retired Army officer, he see’s his voting for the passage as a “conflict of Interest!”

    Unlike the rest of the legislators in the State house and Senate (Attorney’s) who want it quashed so they can continue to make money off the backs of the soldiers (both male and female) with whom the law targets.
    Shouldn’t the attorney’s be required to recuse themselves? Of course not, they have a much better handle on what’s good for us.

    Please check your facts and see that other Federal and State (Oklahoma included) personal have it written in LAW that their monies stop going to their former spouses when the former spouse remarries.

    I look forward to your response but do not expect to see one.

    You should have followed Professor Spector at the meeting. Your lies and half truths presented above were right in line with his.
    My guess is you are a former student of his as were several of the committee members.
    Again, “Check your integrity and morals at the door!”

  5. I was there for the Interim Study. First and foremeost, Military retired pay is NOT a Pension. It is a present wage for present continuing service. Even the U.S. tax court considers it alimoney. Subject to recall, UCMJ, (any former spouses know about the UCMJ)Employment restrictions, Citezenship, Criminal convictions. Heres a good one.. If a servicemeber is convicted of spousal abuse, they lose there retired pay and the former spouse recieves it….but if the civilian former spouse abuses the servicemember, the former spouse still gets the money. Whers the justice.. the attorneys and the former sposues failed to mention that little benny.The former spouse is not subject to these obligations. Ms Brandenburg and Ms DeBrueler who submitted this article, you are not as informed about the issue as you claim. Ladies, did you even read HB 1053? You didn’t mention anything remotely close to the actual intent of this important piece of legislation. Do you even know that current Oklahoma law allows former spouses to retroactively collect payments from service members all the way back to 1981? Mr. Spector kinda mubbled something about it. It would Basically bankrupt the vetrean. Even divorced female service members with kids. Service members have the only federal divorce law on the books specifically targeting them. Hows that for dicrimination? We are just asking to stop payments retroactively, not collect retroactively. The CIA, Foriegn Service and Social Security end payments to a remarried former spouse. Even our Oklahoma judges and legislators have the oppurtunity to end payments to a remarried former spouse thru OPERS and theirs is a qualified pension plan. But military members can’t. Hows that work? Sounds like discrimination to me or at the very least a double standard.

    As far as the attorneys, their statements are also flawed and full of half truths and no truths. I know I heard them in person. In fact, a well known attorney has protrayed himself as a humanitarian for the best interests of the so-called “impoverished spouse” that he charges a contingency fee based on how much he can get for the former spouse. I’m pretty sure that falls into the unethical practice relm at the national and state level. How does terminating payments to a REMARRIED former spouse force the former spouse and their new husband/wife on welfare? Has the divorce rate increased for the CIA and FSA or our Oklahoma state Public employees as a result of terminating payments to a remarried former spouse?
    HB 1053 will undoubtably reduce the military divorce rate by eliminating the “automatic lifetime award” to a former spouse in a “no-fault” Oklahoma divorce. How would Oklahoma become a dumping gound for spouses? Puerto Rico prohibits the division of Military retired pay in a divorce. Is Puerto Rico a haven for “spousal dumping”? It will prevent a former spouse from collecting multiple awards from mutiple military members. HB 1053 will also prevent former spouses and attorneys from attacking and profiting off the veterans VA Disability compensation which is off limits by federal law. Ladies , do you homework. It’s disapointing that you would try and play the emotional trump card. This is 2009 not the 1800’s. I ask that you visit some of the veterans at Tinker AFB, Ft Sill, Vance AFB and the VA hospital and honestly ask these folks about HB 1053.

  6. HB 1053 would simply return an income to the service member that earned it on a monthly basis after the divorce was final and was illegally taken in the first place. Military spouses use USFSPA as an incentive to divorce when their children would prefer that they didn’t. USFSPA promotes broken families that’s why the divorce rate in the military is even higher than the national average.

    How can a nation that calls our service members to arms care so little about their constitutional rights that they fight to uphold for all citizens. USFSPA was back-dated to circumvent a USSC ruling then applied retroactively. USFSPA violates the 10th amendment in that it usurps state domestic relations laws. State never had the authority to treat military retired PAY as property before USFSPA because it cannot stand up to any liberal definition of property. The IRS taxes it as INCOME. No federal statue and the ex-post facto USFSPA itself refers to military retired pay as property. Even DFAS and Britanica refers to MRP as a continue wage for continued military service. If a service members gives up his/her US citizenship to live in another country, they are no longer available for recall and they lose their retirement/retainer PAY. If the former military spouse does that same, she/he continues to draw defense appropriated dollars for life. Some live in countries that are not so friendly to the USA.

  7. Thank God for Oklahoma. This should be part of the federal law. Military pay should be just that (continued pay for reduced service). If the State wants to award it as alimony fine. But, pretending that it is a property asset equally earned has always been a ridiculous notion given the continued obligations for life and restrictions placed on only one of the parties involved.

  8. I have read all sides. It is not a retirement, nor a 401K, and the spouse can’t make a financial investment into it what so ever. They never contribute one dime, yet feel a sense of Entitlement. You should not be able to make a financial gain with no financial investment. Then many states have no fault rules and since my Ex-wife was steadily bringing in men of the night, spending my check already and leaving me with crap after she cleaned the account, these lawyers and othe people think she had it that hard that she is entitled to my money. I had to invest 20+ yrs, and she only has to invest 1 day. That is absolute treachary!! They argue about the financial impact of the community…that doesn’t equate in why they should take my money. Re-distribution of wealth? There are too many Gold Diggers out there and this is why. Some liberal group got this through congress and passed a bill which give a monetary amount to a former spouse weather or not they completed terms of time like the Service members have to. 10 yrs for 50%. So I have to do 20 yrs for the same 50%. Unequal and unfair. Get his bill passed!

  9. I will be following this closely. As a career Navy Warrant Officer my wife left me just after our 20th anniversary. She has since remarried and the State of Washington not only awarded her 1/2 my retirement income but I still pay spousal support in the amount of $2k per month…Yes, $2,000 per month. This is a wrong that should of been fixed years ago. Not only will she have her retirement from her career but her husbands and MINE!!!!! This must be stopped now!!!!

    CWO4 Steve Lewis
    United States Navy

  10. NOT ALL states treat Military Retired Pay as PROPERTY. Additionally, some give Retirement/retainer pay percentages to spouses with only a few years married to the member. The member must serve a minimum of 20 years (day for day) to be entitled to anything. This should be less for the spouse?? Some states treat it as alimony (lost if remaried; Ohio for one) and some as property. There is no equity from state to state. All treat it differently because it was pooorly crafted legislation that has been bastardized over the years with the aid of women’s rights advocates with no concern for the military member. Get off of the soapbox, don’t follow the mainstream hipe of supposed informed people. NONE of the other organizations receiving the same type of retirement (CIA, DEA, etc.) are categorized the same as military. It terminates upon remarriage.

    Get the facts before you shoot from the hip. If you can’t pay attention that long, leave it to the people who know what they are talking about.

  11. So this bill will force many on welfare? What thinking is this, because if i am understanding this right, then the bill is only asking to discontinue payments if the former spouse remarries, correct?
    Well, as a military member who is about to give up his retirement portion for an exspouse who left me and her two kids, two weeks before christmas to go and live with the neighbor (who was a military spouse himself), then tell me what is fair? Not to mention it has been 8 years and i have yet to ever receive a dime of what was promised me in court from her. As well, i had to serve another 8 years and deploy two more times to get my retirement, and didnt see either of them in Iraq when i was there, not to mention she didnt take care of the boys either time i was gone. I say bravo to Oklahoma stepping up to the plate to finally do something that should have been fixed a long time sooner.

  12. This bill if pass will be an awesome law. I totally support this bill. After all the stupid stuff they have done, finally one that makes sense……..

  13. Finally equitable treatment of veterans by the Oklahoma courts. This legislation is long overdue to address the shameless treatment of veterans. Thank you Representative Banz and Senator Anderson for having the forsight and the guts to stand up for veterans.

  14. Another thing to consider is that Oklahoma is a “no-fault” state in it’s awarding of property. And, Oklahoma DOES consider military retirement pay as “property”. Not every state does. Some states consider circumstances of divorce when awarding property, such as extra-marital affairs, abuse, ect. I know, because the judge in my case awarded my ex-spouse a portion of my military retirement pay after we divorced after 8 years of tumultuous marriage. Our marriage was full of infidelity on my ex-spouse’s part and she, in no way, supported me nor did she contribute to me, or my career in a positive way. To the contrary.

    So, you folks tell me, what did she do to deserve the pay that I pay her for the rest of her (and her new husband and their new child’s) life? Mind you, if she retires from a civilian company at the same time I retire in the year 2017, I can’t claim that money. Why not? What do I get from her for the rest of **MY** life? Nothing, that’s what. If I sound disgusted, that’s because I am.

    Making military members pay half of their retirement pay is the same as awarding part of the social security after you turn 65 to your ex-spouse for the rest of their life. Former spouses could argue that they didn’t contribute to their own Social securities because they “faithfully supported” their ex-spouse. Where does it end, folks?

    HB 1053 fixes the loop-hole that exists in divorce law concerning military retirement pay.

  15. HB 1053 is a great law that will terminate excessive overpayment in a divorce. Circumstances change throughout time where old laws need change. This law concerning divorce property and alimony, is a great change.

  16. It’s about time!!

    I knew on lady who divorsed two military members and is currently colecting retirement from both of them and one of them is giving half of his disablity. He cant work (missing one leg)
    SO how is that fair?

  17. AS OF 24 May 2010
    After talking with 15 oklahoma senators and their aids there is more then enough votes to pass this BILL however BIG MONEY from out of state is flowing into reelection coffers and the Bill (HB1053) has been pulled twice from the floor when it was to be voted on.
    THE VETS WILL REMEMBER WHO STANDS WITH US AND WHO DOESN’T

  18. If the bill is so great, why is the language in the bill the most rejected military-related language in any bill in the last thirty years? When a civilian divorce occurs, all marital property is split and split for life. When a military divorce occurs, all marital property is split and split for life. This is how the situation has been for decades.

    If the bill is so great, why does the U.S. Congress reject it annually? Why does the U.S. Department of Defense speak out AGAINST this same language in other failed bills? If the bill is so great, what respectable and well-known individual supports it (who is also not being paid to do so)? And what respectable and well-known organization/entity supports the bill?

    The freedom of speech is obviously extremely important. It is also important to recognize that discrimination is unacceptable. It is a sad, sad day in Oklahoma when a small segment of servicemembers seek preferential treatment for their having served their country. Fortunately, there are Oklahoma servicemembers with principles who do not support this bill. This bill makes a mockery of servicemembers and a mockery of our country.

    Civilian and military divorces should be handled as similarly as possible: marital property division (including both parties’ pensions) for life. Military pensions have been treated as marital property for decades for a reason, because that is the most equitable way to handle military divorces and make them as close as possible to the way civilian divorces are handled.

  19. Richard,

    Military divorces should be treated equal. So then why do the CIA,FSA, Social Security, Oklahoma Public Employee Retirement System terminate payments to a remarried former spouse ? Why not the Military. Why are ther lifetime stipulations and obligations attached to Retired pay for the retiree and NOT the Former spouse? Seems kinda one sided that Military folks aren’t afforded the same treatment. BTW, there are over 40 national, well known, highly respectable Veterans organizations that support this legislation.

    What your doing as an attorney is ignoring and delibertly mis informing the public.

    Honer Veterans this Memorial Day.

  20. Richard,

    The only people making a mockery out veterans are the attorneys sighoning profits off the service and disabilities of military members. All this action has only motivated more Veterans to seek justice. More and more Veterans are becoming educated about the blatent discrimination that you and your cronies are perpetuating for a dollar. They are mad as hell and their not going to take it. Get your facts right. Folks really are educated Mr Attorney.

  21. It seems that there is to much false information as it relates to The Uniform Services Former Spouse Protection Act ( USFSPA), and how military retired / retainer pay is being earned and presented in state courts. I firmly believe the USFSPA law was passed on fraudulent testimony by non other then a feminisms Congressional Representative by the name of Pat Schroeder. She presented military retired / retainer pay as being pay for past military services render. That this military pay was a Military Pension. That civilian pension plans are shared as marital property just like a home, car, land which was earned during a marriage. Therefore military retired pay should be shared by the military spouse in a divorce, as marital property. I would classified this as fraudulent testimony. Especially since military pay, that which is earned in a retired / reserve status is in fact current taxable income. It is being earned daily, paid monthly for a continue military obligation. There is no vested military pension plan, nor military pay for past military services rendered. In fact the term military spouse is not a correct statement, since most spouse are in fact civilians .This military pay can only be earned if the career military completes 20 and or/ more years of active duty, been transferred into a retired reserve status, and complies with the federal laws and military regulations which control the daily earning of this military pay. The career military member is required by federal law to remain subject to recall to active duty until death, (Armed Forces Voluntary Recruitment Act of 1945 (Public Law 79-190), Section 4. The amount of military pay that is to be paid to a career military member is based on the rank held and years of active services at time of transferred into a retired / reserve status. In other words, its current income for a continue employment obligation. This military pay can be and has been reduced and or completely eliminated if the career member fails to comply with the federal law and regulations which control the earning of this military pay. It should further be noted that no active duty military pay was removed from the active duty pay envelope for retirement purposes , by either the career military member and / or DOD. Therefore no marital property existed as it relates to a marital property asset. The very reason the United States Supreme court decided in the McCarty case in 1981,” that military retired pay was not a marital property asset.“ It should further be noted that there is no federal law that allows civilian employees to have there income, that which is earned after a divorce, to be classified as marital property, so why only the Military occupation? The United States Supreme Court should have the USFSPA law repealed, based on fraudulent testimony and discrimination against career military personal who serve and continue to serve out great country, both on active duty and in a retired / reserve status.

    Lewis E. Pugh Jr
    CMSgt (Ret) USAF

  22. I have personally seen some of our Vets get the short end of the stick here in the Oklahoma Court System. It goes something like this.

    G.I Jane has been in the military 17 years, and she has been married for 8 years, she gets deployed for six months and while on deployment gets seriously hurt when an IED went off and maimed her. She returns home from being overseas and finds out that her non-military spouse has taken all the household effects, stopped paying all the bills and moved in with his girlfriend who is now with child. The bank accounts are emptied and the credit cards are max’ed out, the checking account has been emptied and bad checks have been written all over the base and letters of indebtness have been written to her commanding officer, which she is responsible to pay. SHE IS NOW BEING THREATENED WITH MILITARY COURT ACTION. (She has to too stop the legal actions taken against her.) She calls relatives and friends, they loan her the money to pay back enough on the checks that bounced all over base on what her ex-husband has spent on his new girlfriend.
    After talking with her non-military spouse she decides that there can be no getting back together. She obtains a lawyer and files divorce paperwork only to find out he is going to fight her tooth and nail. She is made to pay off all bills that have both of their names on them, which is almost 90% of them.

    After all the court actions the final divorce paperwork is completed after +10 years of marriage and she is told by her lawyer that the judge has ordered that she will have to start paying immediately 50% of her base pay and when she transfers to the reserves at +twenty years she has to pay 50% of her retainer pay. Plus she will Also she will have to give 50% of her disability payments to him due to the injuries she received while on active duty do to the IED that exploded and maimed her, She is beyond words when her ex-non-military husband and his new wife are laughing and joking about the extra spending money they will have for the rest of her life (military vets.)

    This is a very short and too the point of what happens to our Vets here in Oklahoma Court System, does this sound right to you?

    Your VETS have been fighting to have FAIR laws for our Military Vets. BUT your family law lawyers who are Oklahoma State

    Family Law Lawyers that are Senators and Represenitives have been blocking this for years because the military is a cash cow for them. They know that the divorce rate would go WAY DOWN if bills like HB 1053 where passed in 2009/2010. (THIS WAS HEARD OUT OF THERE OWN MOUTHS.)

    PLEASE ask your Oklahoma Senators and Congressmen to support military divorce laws.

  23. Here’s what I find unfair about the USFSPA:

    · Length of Marriage. Most service members believe one must be married for at least 10 years before their spouse can receive a portion of their pay after divorce. This is not true. Under the provisions of the Act, a divorce court can award a division of retired pay even after one day of marriage. The “10 year rule” only applies to the Defense Accounting Office making direct payments to the ex-spouse. A military member must serve honorably every day for a minimum of 20 years to qualify for retirement pay. A military spouse can qualify after only one day.

    · Divorce-Court Fairness. The Act assumes that divorce court judges will divide retired pay in a fair and equitable manner. Remember, one of the reasons for the act was to reward ex-spouses who had sacrificed to support the military member’s career. Unfortunately, along came “No-Fault” divorce courts, which are used now in almost every state. The “No-Fault” courts divide property without regard to the specific circumstances of the marriage or wrongdoing at the time of divorce. There are thousands of service members forced to give up 1/2 of their retired pay to ex-spouses who actually did all they could to damage the service member’s career. These facts are simply irrelevant to “No-Fault” divorce courts.

    · Remarriage. Under the Act, payment of devised retirement pay continues for the life of the service member, or until the death of the ex-spouse. It does not stop upon remarriage. There are several cases of people marrying and divorcing numerous military members, then applying for — and receiving — retirement pay from each of them.

    · Spouse Employability. The Act was written during a time when military spouses were discouraged from having their own career. This is no longer the case. All of the services have regulations severely prohibiting the discouragement of spouse careers, and there are now several official programs to assist military spouses with employment, and even give them preference over other civilians for government jobs.

    · Recall. A military retiree is subject to recall to active duty and is — at all times –subject to the provisions of the Uniform Code of Military Justice, as a condition to receiving retirement pay. The ex-spouse is subject to neither of these.

    · Statue of Limitations. There is no statute of limitations, limiting how long ex-spouses have before they can go back to divorce court and demand a portion of the service member’s retired pay. Several times, military retirees have found themselves drug back into family court by ex-spouses they haven’t seen or heard from in dozens of years, then forced to relinquish a portion of their retired pay. Many times these ex-spouses have been remarried several times!

    · Measure of Service. Even in those cases where a marriage does last 20 years (the entire career), it is blatantly unfair to the veteran to state that 20 years of household service is “50-50” equal to 20 years of arduous military service. The service member has been subject to military orders, discipline, dismal sleeping/eating conditions, enemy fire, chemicals, drugs, and a dozen other hardships that only a military member is asked (nay, ordered) to endure.

    EXAMPLE: If a retired military member commits a felony, or assumes citizenship in a nation other than the USA, his/her right to retired pay is extinguished.
    A former spouse may live where she/he chooses, commit crimes at will and still retain her/his eligibility to receive a share of military retired pay.
    A retired military member’s obligations to the federal government, and (under the USFSPA) to a former spouse, persist for life. The “services” rendered by the spouse–both to the military member and to the military service–terminate at divorce. Under the USFSPA the former spouse continues to receive payments for services not rendered.

    Military veterans and retirees have no wish to see ex-spouses turned out penniless into the streets after a long marriage.

    However, the USFSPA has shown that it is not the solution. The proper solution would be for divorce courts to award appropriate amounts of alimony and child support, in those cases where it is specifically warranted.

    Not a blatant theft of a military retiree’s retainer pay.

    This year, Congress will consider H.R. 72. While this resolution falls far short of needed changes to the USFSPA, it’s a step in the right direction. Among other minor changes, H.R. 72 stops payment of devised retired pay upon remarriage of the ex-spouse, and enforces a three-year statue of limitations on the time an ex-spouse may take the military member back to court to request a division of retirement pay. I encourage you to write, call, or email your congressman in support of H.R. 72, and in support of future initiatives to restore fairness to the military divorce system.

  24. Additional references and legal facts, which will enlighten you as to why military retired/retainer pay is not nor has it ever been a community property asset.

    1. October 6, 1945 (H.R. 3951) Public Law 190. Armed Forces Voluntary Recruitment Act of 1945. Purpose of Law — To stimulate volunteer enlistments in the Regular Military and Naval Establishments of the United States. Sec 4 of this law states, Whenever any enlisted man of the regulator Army shall have completed not less than twenty or more than twenty- nine years of active services, he may upon his own request, be transferred and retired shall receive, except with respect to periods of active duty he may be required to performed, until his death, annual pay. There is like status for officer personnel. Note: This law clearly states that the military member is in a reserve status. That the military member will remain so until death. Thus the reason for retainer pay—Not Pension. It should also be noted that no such laws exist for the spouse. Question; if a military retired member is recalled to active duty, will the court awarded property asset, which was awarded to the former spouse be stop? Or will the military member be required to pay the former spouse from the active duty pay? If the payment is stopped, will the military member be held in contempt of court?

    2.The I.R.S. Code 26 C.F.R. S 31. 3401 (a)-1(b) (1) (ii) states that military retired pay is a current wage.

    Question: How then can a state court classify military retired/retainer pay as a deferred income? Current wages are not a property asset; therefore courts seem to have changed the classification of military retired/retainer pay in order for the pay to appear as a property asset.

    Note: State Courts do not require Former Spouses to pay taxes each month on the retired/retainer pay that they receive as a community property asset. Therefore the military member is being forced to pay federal taxes on income he never receives. The IRS has noted this problem and they have forced the Military Finance centers to send the former spouses a tax statement. That took 20 years to get this accomplished? What about the past 20 years, or is that just another freebie for the former spouse?

    3. The United States Supreme Court decision– McCarty vs McCarty 1981. There is a conflict between the terms of the federal military retirement statues and the community property right asserted by the appellee. The military retirement system confers no entitlement to retirement pay upon the retired members spouse, and does not embody even a limited community property concept. Note: Some State Courts, without Federal authority, were in fact taking military retired/retainer pay as a property years before the enactment of the Former Spouse Protection Act (P.L.97-252) in 1982. Thus the reason for the United States Supreme Court ruling on McCarty. Congress wrote public law 97-252 to over ruled the United States Supreme Court.
    Question: Did the Former Spouse Protection Act change any of the federal laws and/or military regulations that govern the military members required obligation in ordered to receive military retired/retainer pay? The answer to this question is no! The Former Spouse Act has allowed state courts to transfer military funds that are authorized and appropriated for National Defense purposes to social, non-defense purposes for which there is no established earned or contractual basis with the United States Government. I believe one could call this Fraud! No other occupation in the United States is required by Federal Law, except the military, to have retainer wages classified as a property asset to a former spouse for life, why?

    4. United States vs Tyler, 105 U.S. 244 (1882). The Tyler court characterized such pay as Compensation. Which continued at a reduced rate. So where did the words deferred income and pension come from? I can only assume that it was and assumption made my some state attorney. The wording pension cannot be found in federal law, which govern military retired pay.

    5. Reference 26 USC 31.3402, Retired military personnel are considered employees or members of the service they retired from. 26 U.S.C 31.3401 (a)-1 (b) (1) (ii) provides that retired Pay constitutes wages and as such is therefore subject to withholding and reporting as are other wages. While 26 U.S.C. 3405 (a) (2) governs pensions and annuities. Retired military pay is neither a pension nor an annuity under current I.R.S. regulations. Question: Military members are the only class of U.S. citizens which are required State Courts to pay retainer wages, as a property asset, to a former spouse for life, why? It should also be noted that many of the former spouse have remarried.

    Note: The property asset award doesn’t stop upon the remarriage of the former spouse, as due other remarriages, why?

    6. The Department of the Air Force Accounting and Finance Center, on May 19, 1986 notified a military retired Air Force Officer that he owned the Federal Government $3,161.63. The letter stated that he was subject to the Dual Compensation Law, codified in title 5, United States Code (U.S.C.) section 5532. This retired military officer was required by federal law to pay back $3,161.63 of his military retired pay for teaching math to Navajo Indians. The job was considered federal employment, since his contract was with the Bureau of Indian Affairs, Dept. of the Interior. Question: Would a former spouse who receives military retired/retainer pay as a community property asset be required to return funds for teaching Navajo Indians math? This is just another example of discrimination. Reference Lt. Col. Oliver North who lost his Military retired/retainer pay for being convicted of a crime. It took an act of Congress to restore his retired pay. If congress had not acted, then are we to assume that Col. North wife would have also lost her property rights to his pay?

    7. Air Force Times Dated Sept 1, 1986. Retired Pay Halted during Saudi work. Maj. Stephen H. Hartnett (USMC Ret), who accepted a job in May 1985, with a Delaware- Base firm of Frank E. Basil Inc, had his military retired pay stopped. The U.S. Comptroller General ruled he was under the supervision and control of the Saudi Government. Long-standing legal rulings have placed retired military personnel in this category, since they are subject to recall to active duty. Question: Will a former spouse of a military member lose their property rights to the military retired pay if they were to become employed by a foreign government?

    8. Air Force Times dated March 5, 1984, Retiree Renouncing Citizenship. SFC Charles J. O1 Fearna retired from the Army in 1965, after 22 years of military service. He moved to Australia in 1966 and has lived there ever since. In April, 1981, O1 Fearna become a naturalized citizen of Australia, apparently without realizing what input it would have on his military retired pay. The Comp. Gen. held in previous decisions that military retirees lose their right to retired pay when they lose their citizenship. The Comp. Gen. stated all members on the retired list of the regular Army remain a part of that force and relied upon as a dependable source of manpower. The finance center told O1 Fearna that his retired pay ended when he forfeited his citizenship. They stopped his retired pay immediately and advised him to refund retired pay he received since April 1988. Question: Does a former spouse lose their so call property asset rights if they loose American Citizenship? Millions of dollars of military retired/retainer pay is being paid to Foreign National who divorces military members. Many have returned to their Home Countries.

    9. Air Force Times July 11, 1983, System is not old age pension, by Caspar Weinberger, Secretary of Defense. These dedicated professionals routinely work long and irregular hours with no overtime pay. They face exposure to risk, an inability to control living or working conditions, forced family separation, and periodic relocations. At the same time, they are obliged to accept a highly disciplined and controlled life, unlike any other sector of the American population. Military members serve in a system that provides no vesting in the retirement system, and in fact, only 12% of those who enter active service ever reach retirement eligibility. The other 88% receive no retired pay at all.

    Question: Does the hardships of military life being on divorce? If so, then who created this hardship? Has no fault state courts taken these hardships into account when they awarded 50 % of a military members retired/retainer pay as a property asset for life to the former spouse?
    Note: The spouse of a military member could leave the military member to all the hardships of military life and collect half the military retired/retainer pay as a property asset for life, regardless if the former spouse were to remarry six times!

    10.Sergeant’s magazine, December 1985, Pennsylvania retiree fights state law. Military retirees in Pennsylvania are fighting a state law enacted in 1980. When military retirees are laid off from civilian jobs, the law reduces unemployment compensation by the amount of military pension received.

    Question: since when did a military retiree receiver a Pension? Will a former spouse have their awarded military retainer pay reduced by the amount of unemployment compensation they receive? Is this a clear case of discrimination being ignored by the politicians?

    11.Costello vs. United States, Constitutional law 278.6 (1), Military retirement pay is not deferred compensation for past services but, like active duty pay, is pay for continuing military service and as such, can be prospectively altered without offending due process. U.S. C. A. Cont. Amend. 5.2 Question: Does this constitutional ruling still apply to military retired pay? If not, then why not?

    12. Lemly vs. United States (1948)… Retirement pay is a continuation of active pay on a reduced basis. Even though an officer is retired from active duty and is receiving retirement pay, he is still subject to call to active duty as long as his physical condition will permit. He is still an officer in the services of his country even though on the retired list. Question: Is this still true? If it is, then has not the military occupation become the only occupation, which pays a retainer pay as a community property asset?

    13.Washington State law, R.C.W. 26.16.140 states, when a husband and wife are living separate and apart, any money they make is the separate property of each, that it is not community property. Question: If military retired pay is in fact earned daily, paid monthly, and is not based on a deferred income, nor is it pay for past services rendered, then how can it be considered a property asset in Washington State?
    Question: How could a state Judge take military retired/retainer pay as a property asset prior to the Former Spouse Act, (P.L.97-252)?

    14. Washington State law, R. C. W. 6.16.030 written in 1890, states, and Pension money received from the United States Government is exempt from execution, attachment or seizure by or under any legal process whatever.
    Question: If military retired pay is being classified as a pension, then under what law are they using to take the pay in Washington State? I can only assume its case law! But wait; doesn’t legislative law over rule case law?

    15. Under Social Security and Railroad retirement, there is a statutory benefit for divorced spouses who have been married to the employee for at least 10 years. Payment of this benefit does not reduce the retries benefit. Retiree retains full-retired pay. Includes remarriage clause, terminating retired pay upon remarriage.
    Question: Why was the remarriage clause left out of the Former Spouse Act? Again, the military member seems to have been discriminated against, why?

    16. Reference the National Association of Retired Federal Employees (NARFE) contended that a 3.1 percent COLA become a vested entitlement on December 1, 1985, and therefore, its cancellation by the Gramm-Rudman-Hollings (The Balanced Budget and Emergency Deficit Control Act of 1985) on December 12, 1985, made it illegal. A federal three – judge panel ruled that retirees have no property rights to benefits not yet paid. The U.S. Supreme Court essentially, upheld this by its refusal to hear the appeal.
    Question: Since military retirees have no property rights to military retired pay, then why does a former spouse gain a property asset right?

    17. The U.S. Supreme Court in the Buchanan v. Alexander, 45 U.S.20 (1846), Ruled that money owed by the United States to the individual service member be longs to the Treasure until it is paid to that individual. Essentially, the Supreme Court held that courts couldn’t tell a federal disbursing official what to do since it would defeat the purpose for which congress appropriated the money. If the specific reason Congress appropriated funds for the retired military member after 20 years of active duty is not as compensation for continuing military obligations, what, then, is it reason? What law provides other reasons? The Former Spouse Act provides that a former spouse may receive military retirement pay directly from a military finance center, without sending the money to the military member first.

    Question: Doesn’t this circumvent this ruling made by the United States Supreme Court? In Summary: If Congress intended to characterize military retired pay as property, and then allow the states to take it from the military service member and give it to the member’s former spouse, without just compensation, then congress has violated the due process clauses of the United States Constitution.

    Some have concluded that Congress enacted the Former Spouse Act to recognize the contributions and sacrifices of the military spouse. Those contributions and sacrifices have helped create and maintain an effective military force. Therefore, the Former Spouse Act, by allowing military retired pay to be paid the former spouse, benefits the military and constitutes a public use. Then should not the Government pay the former spouse for the services that they rendered? It’s time that the hearings on Public Law 97-252 (Former Spouse Protection Act) begin.

    Who in their right mind would spend 20 and or more years in the military, only to have their retired pay reduced by 50%. A new violation of the military members civil and constitutional rights occur each month when the involuntary diversion of funds is enforced by the federal government. Without the required legal intervention our military members will remain in perpetual servitude to a former spouse and their present spouses until they die.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.