Posted on: Monday, August 2, 2004

MILITARY UPDATE
Spoils from divorce challenged

By Tom Philpott

Lawyers for divorced service members and retirees have filed a weighty 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 in "Adkins et al v. Rumsfeld" are 58 divorced service members and retirees and a limited-liability corporation, ULSG, which is raising money for legal fees. Their target is the USFSPA, 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 or ask the court to affect or undo divorce agreements or property settlements entered into by plaintiffs or other veterans.

It does ask the court to declare various provisions of USFSPA 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 to dismiss, filed July 9 by U.S. Attorney Paul J. McNulty, claims none of the arguments regarding violation of constitutional guarantees has merit. But the court need not even consider constitutional challenges, it adds. It should dismiss the case for lack of subject-matter 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.

Lawyers for the plaintiffs had made four broad arguments in April for the court to find the law unconstitutional: It wrongly was applied retroactively to members retired or even in service before it took effect; it provides inadequate procedural protections against illegal taking of retired pay; it differs prejudicially from laws that govern other federal pensions in divorce; it is not applied with uniformity by state courts. USFSPA therefore violates guarantees of due process and equal protection.

The brief filed July 27 fleshes out the arguments, and highlights in more detail the disparities in treatment by courts and weaknesses in bureaucratic safeguards for divorced members. These include allowing garnishment of retired pay on mere presentation to finance centers of a court order that 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 government counters that Congress has authority to decide what laws the states need to apply with uniformity to protect national security. With the USFSPA, it says, Congress decided the "best course of action for the national defense is to allow the application of state law."

While some legal experts are skeptical of the constitutional challenge, interest in understanding the USFSPA is said to be rising, possibly from the strain on families caused by longer deployments and exposure to war.

Questions, comments and suggestions are welcomed. Write to Military Update, P.O. Box 231111, Centreville, VA 20120-1111, or send e-mail to: milupdate@aol.com. Or visit Tom Philpott's Web site.