Posted on: Monday, June 14, 2004
MILITARY UPDATE
Division of retirement pay subject of lawsuit
By Tom Philpott
A group of divorced service members and retirees have filed a lawsuit challenging the constitutionality of the 1982 law that permits state courts to divide military retirement as marital property in divorce settlements.
A legal complaint, the first step in the lawsuit, was filed in the U.S. District Court for Eastern Virginia, in Alexandria, Va., arguing that the Uniformed Services Former Spouses Protection Act violates divorced members' rights to due process and equal protection.
Jonathan L. Katz, one of two lawyers for the plaintiffs, said the lawsuit might be the first constitutional challenge of the USFSPA. It comes more than two decades after the law's enactment, he said, because attempts to get Congress to address the law's unfair provisions have failed.
"When legislative efforts don't work, the only other option is to go to the courts," said Katz, a constitutional lawyer in Silver Spring, Md.
Plaintiffs include 44 divorced retirees, 15 divorced active-duty members and a limited liability company, called ULSG (USFSPA Litigation Support Group), which retirees established to raise money for the lawsuit.
In a recent report to Congress, defense officials reported that in 1999 there were 54,000 former spouses receiving a share of military retirement directly from the Defense Finance and Accounting Service under an automatic payment provision of the USFSPA.
Former spouses apply with a form (DD 2293) and a certified copy of a court order that can meet the law's criteria. Given that DFAS said it was processing an average of 18,000 court orders annually, the number of ex-spouses now drawing a share of retired pay through direct payments likely exceeds 100,000.
Former spouses from marriages that lasted fewer than 10 years of the service members' time in uniform can't qualify for automatic payments. But under the USFSPA, divorce courts still can order retirees to pay a portion of their annuities directly to ex-spouses as part of property settlements.
Katz said the law was enacted in a different era when fewer women worked and Congress felt it needed to protect financially vulnerable females.
Today, he said, the number of women service members being victimized by how state courts apply USFSPA is climbing. For example, the divorce decree of the lead plaintiff in the lawsuit, Tammy Adkins of Clovis, N.M., apportions disability benefits as well as Clovis' retirement pay to her ex-spouse.
Government lawyers have until early July to respond to the lawsuit. ULSG, meanwhile, has attracted more than 2,000 retired and active-duty supporters. They are expected to contribute at least $100 apiece toward legal costs.
The group's Web site is www.ulsg.org. A support group for former military spouses is Ex-POSE (Ex-Partners of Servicemembers for Equality). Its Web site is www.ex-pose.org.
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.
