Lawyers for divorced service members and retirees have filed a constitutional challenge to the Uniformed Services Former Spouses Protection Act, charging widespread violations of due process and equal protection rights in the way the law is written and enforced.
What might be described as the legal muscle behind the lawsuit became apparent July 27 with the filing of a 50-page brief opposing the government’s lengthy motion to dismiss the case.
The plaintiffs are 58 divorced service members and retirees, and a limited-liability corporation, ULSG, which is raising money for legal fees. Their target is the spouses protection act, a 1982 law that allows state courts to divide military retirement in divorce settlements.
The lawsuit is before the U.S. District Court for Eastern District of Virginia, which has scheduled a Sept. 13 hearing in Alexandria. The lawsuit does not seek monetary damages nor ask the court to retrospectively affect or undo divorce agreements or property settlements entered into by plaintiffs or other veterans.
It does ask the court to declare provisions of the law unconstitutional and to order changes that would eliminate errors and ambiguities, improve procedural safeguards and put an end to widely divergent interpretations of the law by state courts.
The government’s motion for dismissal says that no constitutional violation claims have merit. But, it adds, the court simply should dismiss the case for lack of jurisdiction, given Supreme Court rulings in 1923 and 1983 that bar federal courts from nullifying state judgments on issues that could have been raised at state court level.
“It is simply beyond question that the facts presented to the 11th Circuit (in a 1996 case) are the exact facts presented to this court,” the government contends. That 1996 case was dismissed for lack of jurisdiction.
The brief filed July 27 fleshes out the arguments of rights violated and highlights with more detail the disparities in treatment by courts and weaknesses in bureaucratic safeguards for divorced members.
Those weaknesses include allowing garnishment of retired pay “upon the mere presentation” to finance centers of a court order that the law says must only “appear regular on its face.” The lawsuit contends that members aren’t given sufficient notice or opportunity to be heard, and there’s no provision to recoup retired pay improperly paid or withheld.
The lawsuit describes “a startling degree of dysfunction in a statute that is supposed to have uniform effect throughout the nation.”
That lack of uniformity is seen in the way state courts claim jurisdiction over members; treat the law’s 50 percent cap on disbursements of “disposable” retired pay; protect or divide disability benefits; and calculate ex-spouse shares using either retirement on date of divorce or date of retirement. State courts also differ on whether to force members to retire in order for a spouse to share in that benefit, the lawsuit contends.
The government counters that Congress has authority to decide what laws the states need to apply with uniformity to protect national security.
To comment, write Military Update, P.O. Box 231111, Centreville, VA 20120-1111, e-mail milupdate@aol.com or go to www.militaryupdate.com.
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