FORMER SPOUSES PROTECTION ACT (USFSPA)

The Uniform Services Spouse Protection Act, (Public Law 97-252, 910 USC 1408) became law on February 1, 1983 as a compensation measure intended for former spouses of retired military personnel. The marriage had to have been concurrent to any day of the service member’s time on active duty that counted as time served toward retirement.

While the original legislation had good intentions, its application has become twisted in the intervening years, leading to numerous inequities by various state courts. The Act is now viewed as an "open door" for the individual states to divide military retired pay without regard for the original intent of the law.

The adverse consequences of the Act have imposed severe financial hardships on military retired members and their second families.

The adverse consequences include:

  • Reopening of divorce cases that were settled prior to the enactment of the Act
  • Retroactive partitioning of retired pay
  • Continuation of payments after the former spouse remarries
  • Absence of a grandfather clause to protect retired pay earned prior to the 1983 effective date
  • Allowing the former spouse to receive a pay benefit that was earned by the military member after the divorce was final (e.g., subsequent promotions and COLA’s)
  • Inclusion of disability compensation in the award
  • Payments to former spouses being required prior to the military member's actual retirement

The following are two rules of thought in remediating the disparity of this law.

1. Support the principle that spouses of military personnel have a right to adequate support, (which includes child support as it applies), but within the context of the Supreme Court decision of *McCarty vs. McCarty 453 US 210 1981 (Military retirement pay is not marital property) and *Mansell vs. Mansell 490 U.S. 581 1989 (VA disability is not included in disposable income).

2. The U.S. Constitution clearly states, that all laws must be dealt with in a uniform manner and that rulings based on our laws, must be uniform and consistent.  Various State Courts are not treating this law in a uniform or consistent manner.  Outrageous tragedies created by various State Court rulings affect our fellow brother and sister veterans.  Rank, gender, race, time of rank while in service, ability or disability are to have no regard in divorce court rulings, but are affecting the outcome of these rulings.  The USFSPA law is unfair due to its disparity and the law is unconstitutional. The LLSC will soon challenge the USFSPA law in federal court in an attempt to have it overturned.

* Use Google or a similar search engine to find out more about these court rulings for better understanding of what is at stake here.