Congress may revisit marital property law

An Army officer’s complaint during a Pentagon town hall meeting might breathe new life into an issue Congress has ignored for years: a 1982 law that allows state divorce courts to divide military retirement as marital property, jointly earned.

The particular “injustice” cited by the officer, whose comments caught Defense Secretary Donald Rumsfeld off guard, is a court order directing that she pay her ex-husband a share of her retirement when she reaches 20 years of service in 2006, whether or not she retires.

It will force her out of service, said the officer, identified by associates as Lt. Col. Patricia Larrabee.

“I can’t afford to write (a) check to my ex-husband every month out of my military pay,” she told Rumsfeld during the June 29 forum.

Rumsfeld must have disappointed advocates for changing the Uniformed Services Former Spouses Protection Act (USFSPA) to be more favorable to retirees by confessing, “I’ve never heard of it.”

But Gen. Richard Myers, chairman of the Joint Chiefs, had. Appearing with Rumsfeld, Myers stepped forward to advise his boss that the law in question had been written in an earlier era when military spouses were almost always women and “probably did not work” outside the home.

“So it needs to be looked at,” Myers said, endorsing Rumsfeld’s promise to Larrabee to have Dr. David Chu, undersecretary for personnel and readiness, review the issues.

More than 3,300 Army officer marriages ended in divorce last year, up 78 percent from a year earlier and triple the number in year 2000. Among Army enlisted soldiers, more than 7,100 were divorced last year, an increase of 28 percent over 2003 and 53 percent since 2000.

Critics of the spouse protection act say more and more court judges are directing active duty members, as part of their divorce settlements, to begin to make payments based on estimates of the ex-spouse share of future benefits.

Indeed, though it escaped Rumsfeld’s notice, the Defense Department in February proposed, as part of its 2006 defense authorization budget request, that the act be amended to prohibit court-ordered payments based on the “imputation of retired pay,” thus forcing members to make retirement payments to former spouses before they actually retire.

The House and Senate armed services committees quietly dropped the suggested change from their defense bills.

Based on data compiled last year, the Defense Finance and Accounting Service had been receiving about 18,000 court orders a year directing the division of military retired pay as part of a divorce settlement.

Larrabee told Rumsfeld her circumstance might “sound a bit shocking to you because now there’s a women having to pay an ex-husband who makes just a lot more than a lot of us in this room.” But in fact, she said, it’s a gender-neutral issue affecting many service members although “we can’t get a congressman or anybody to touch this.”

For several years, Rep. Cass Ballenger, R-N.C., had a bill before Congress, called the Uniformed Services Divorce Equity Act, which would have amended the spouse protection act in several ways to better protect divorced military members and retirees when courts divide their annuities as marital property.

Courts consistently have turned back legal challenges to the act, usually suggesting that Congress make whatever changes are appropriate.

Since Ballenger retired, no lawmaker has taken up the cause. Committee chairman continue to ignore the issue. A push from the Joint Chiefs Staff chairman could change the dynamic, but Myers will retire in September.

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