A 1982 law that allows state courts to divide military retirement as marital property in divorce proceedings has grown skin of armor, making it impenetrable to court challenge or legislative change.
That, at least, is how it must seem to longtime critics of the Uniformed Services Former Spouses Protection Act and to bureaucrats seeking changes just to improve how the law is administered.
Last month a federal appeals court rejected a host of constitutional challenges to the law brought by 58 divorced retirees and active duty members. Also last month, Congress declined to allow the first minor adjustments to the ex-spouse law in 14 years, shelving three Senate-passed provisions. The reason: Lawmakers were peppered with complaints from divorced members and ex-spouses, some saying more should be done to ease their grievances, while others wanted the law be left alone.
“There is still power going through the third rail,” said a congressional staff member of the wave of complaints. He was comparing the political hassle of amending the law to the deadly “third rail” that lawmakers believe they touch when they try to change the Social Security program.
Divorced members who continue to challenge the legality of the law in court suffered their latest disappointment Sept. 18 when the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled in the Adkins v. Rumsfeld case.
Their lawsuit argues that the ex-spouse law violates divorced members’ rights to due process and equal protection. Persons who joined the military before the law was enacted should be protected from its effect because they served with the expectation of receiving full retired pay, not of seeing it divided as marital property, plaintiffs argued.
Also, the lawsuit contends, states don’t apply the law uniformly, which steps on Congress’ authority “to raise and support armies.” Plaintiffs also claim the law is discriminatory toward female service members. Their reasoning on this point is that the law was enacted so ex-spouses are not left destitute after military marriages dissolve. Yet the 24-year-old law fails to recognize the number of women now in service and the reality that their male ex-spouses are more likely to have independent incomes that lessen their financial need to share in military retired pay.
Writing for the appeals court majority opinion, Judge M. Blane Michael considered and dismissed each of these arguments.
“This argument presupposes that the retirement pay can only be characterized as compensation for service rendered during retirement. The presupposition is false,” Michael wrote. “Although military retirement pay has some unique features, it also resembles an ordinary civilian pension in many respects, and Congress grasped that resemblance in passing the act.”
Challengers intend to appeal the decision to the Supreme Court.
Congress, meanwhile, refuses to make any change to the act or to even hold hearings. Those Senate-passed provisions knocked from the final defense authorization bill would have repealed the “10-year rule” that dictates what court orders the Defense Finance and Accounts Service deems eligible for automatic payment of retired pay to former spouses.
To comment, e-mail milupdate@aol.com, write to Military Update, P.O. Box 231111, Centreville, VA, 20120-1111 or visit www.milupdate.com.
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