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The Honolulu Advertiser
Posted on: Monday, July 18, 2005

Divorce law under scrutiny

By Tom Philpott

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An Army officer's complaint during a Pentagon "town hall" meeting might breathe new life into an issue Congress has ignored for years: a 1982 law that allows state divorce courts to divide military retirement as marital property, jointly earned.

The particular "injustice" cited by the officer, whose comments caught Defense Secretary Donald Rumsfeld off guard, is a court order directing that she pay her ex-husband a share of her retirement when she reaches 20 years of service in 2006, whether or not she retires.

It will have the effect of forcing her out of service, said the officer, identified by associates as Lt. Col. Patricia Larrabee.

"I can't afford to write (a) check to my ex-husband every month out of my military pay," she told Rumsfeld during the June 29 forum, televised worldwide to U.S. troops over the Pentagon Channel. "By the way," Larrabee added, "he makes thousands and thousands of dollars more than I do." She said she has custody of their two young children.

Rumsfeld must have disappointed advocates for changing the Uniformed Services Former Spouses Protection Act to be more favorable to retirees when he confessed, "I've never heard of it."

But Air Force Gen. Richard Myers, chairman of the Joint Chiefs, had. Appearing with Rumsfeld, Myers stepped forward to advise his boss that the law had been written in an earlier era when military spouses were almost always women and "probably did not work" outside the home. Myers endorsed Rumsfeld's promise to Larrabee to have David Chu, undersecretary for personnel and readiness, review the issues.

Larrabee reminded Rumsfeld that the divorce rate in the military is higher than for civilian couples and is rising. More than 3,300 Army officer marriages ended in divorce last year, up 78 percent from a year earlier and triple the number in year 2000. Among Army enlisted soldiers, more than 7,100 were divorced last year, an increase of 28 percent over 2003 and 53 percent since 2000.

Critics of the law say more and more judges are directing active duty members, as part of their divorce settlements, to begin to make payments based on estimates of the ex-spouses' share of future benefits.

Based on data compiled last year, the Defense Finance and Accounting Service had been receiving about 18,000 court orders a year directing the division of military retired pay as part of a divorce settlement.

Larrabee told Rumsfeld her circumstance might "sound a bit shocking to you because now there's a woman having to pay an ex-husband who makes just a lot more than a lot of us in this room." But in fact, she said, it's a gender-neutral issue affecting many service members, although "we can't get a congressman or anybody to touch this."

Courts consistently have turned back legal challenges to the law, usually suggesting that Congress make whatever changes are appropriate.

But members of Congress fear opening the law to any change would fuel a firestorm of lobbying by both divorced members and ex-spouses, many of whom have their own sad stories of neglect and injustice.