THE FORMER SPOUSE PROTECTION ACT: A BAD LAW FOR VETERANS

Army Times (Dec. 1, 2003)

By Jonathan L. Katz

In 1981, the United States Supreme Court ruled that divorce courts could not touch veterans' retainer/retired pay absent legislation to the contrary. McCarty v. McCarty, 453 U.S. 210 (1981). Dissatisfied with the Supreme Court's ruling, Congress passed a bad law that reversed the protections that the Supreme Court had provided to divorced veterans' retainer/retired pay.

The law is the Uniformed Services Former Spouses’ Protection Act (USFSPA), whose main substantive provisions are codified at 10 U.S.C. § 1408. The USFSPA has created a tremendous and unfair financial burden on countless divorced veterans, to the point that over two thousand divorced veterans have banded together to support a court challenge against the USFSPA, through the ULSG, LLC, or the USFSPA Litigation Support Group.

The ULSG does not ask divorce courts to give divorced spouses anything less than their fair share in dividing tangible personal and real property assets, setting alimony, and arranging child support. Instead, the ULSG recognizes that divorce proceedings become unfair when divorce courts are permitted to treat veterans' retainer/retired pay as marital property and to divide it accordingly.

Not only is it unfair to permit state divorce courts to treat veterans' retainer/retired pay as marital property, but it also is unconstitutional to do so. For instance, The USFSPA does not even exempt veterans who joined the military before the law was ever passed. This amounts to an unconstitutionally retroactive application of the law, seeing that the law was passed only after the Supreme Court said that veterans' retainer/retired pay could not be divided in divorce court.

Furthermore, divorce court treatment of veterans' retainer/retired pay varies tremendously depending on the state where the divorce takes place, seeing that state divorce laws vary drastically. As a result, countless military members are thrust into a particular divorce court not because the servicemembers chose the particular state court, but because of efforts by former spouses to "shop" for a favorable forum. Moreover, the USFSPA does not even provide basic procedural protections to service members and can deprive veterans of significant property rights without virtually any notice or opportunity to object.

Although this twenty-year-old law may have been passed with the intention of protecting the ex-spouses of male military members, the issue is no longer gender-based, as witnessed by the ever-growing number of female military members, including those who have served in combat in Iraq. Furthermore, both female and male divorced veterans are backing the ULSG's effort to overturn the USFSPA.

Consequently, the ULSG, LLC, has hired a team of attorneys to challenge the USFSPA in court on behalf of those still on active duty and retired veterans -- both women and men -- who have been harmed by the law and who continue to be harmed by it. On December 6-7, 2003, the ULSG, its attorneys and supporters will meet in Arlington, Virginia, to move ahead to challenge this bad law in court.

UPDATE: On January 23, 2006, ULSG filed its brief and appendix (see here and here) in the United States Court of Appeals for the Fourth Circuit. 

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