In early September, Congress received a lengthy report from the Department of Defense on the Uniformed Services Former Spouse Protection Act of 1982 with modest recommendations for reform. In accepting the report, which was two years overdue, lawmakers lost the best excuse they had for avoiding another round of hearings on the controversial ex-spouse law and a new avalanche of complaints concerning the sad consequences of full careers and flawed marriages.
Under the act, more than 54,000 former military spouses receive a share of service retirement each month, direct from the Defense Finance and Accounting Service. The new study, called "Report to Congress Concerning Federal Former Spouse Protection Laws," recommends only minor adjustments to the law.
Many retirees will be disappointed to learn the Department of Defense opposes three of four key provisions of a legislative reform package (bill HR 1983 in the current Congress) that retiree groups have been pushing for years. Indeed, the only key feature of HR 1983 that the Pentagon endorses is an end to "windfall" payments to ex-spouses resulting from longevity gains and promotions earned after the divorce but before the member retires. Yet that change provision should be applied only "prospectively," the report says, presumably so that it does not unravel thousands of settled property disputes. Other key recommendations in the report are:
- Repeal of the ten-year marriage requirement for direct payment. Former spouses with court orders granting them a share of retired pay can get direct payments from the Defense Finance and Accounting Service only if they were married at least ten years while members were in service. No other retirement plan has such a rule, the report says, and it misleads too many ex-spouses into believing they cannot seek a slice of retirement unless married ten years. In fact, the rule affects only eligibility for direct payment.
- Modification of ex-spouse eligibility for the survivor benefit plan (SBP) in several ways. One change would allow election of multiple SBP beneficiaries—both ex-spouses) and current spouse—with presumption that their SBP shares will match, proportionally, their shares in retired pay. Another would remove a one-year limit on ex-spouses to seek recognition as a courtordered SBP beneficiary.
- Relaxing the 20-20-20 rule. Former spouses now can qualify for medical care and other benefits if 20 years of their marriages overlapped with 20 years of the members' military careers. The Defense Department finds this too restrictive and suggests a change to allow up to five years of the overlap to include married time after the member retires. This change would be retroactive to benefit current ex-spouses, the report says. But the Pentagon will not recommend it formally until the cost of expanding the medical rolls by a few thousand more beneficiaries is analyzed and deemed affordable.
Given the number of complaints that swirl around the ex-spouse law from retirees and ex-spouses, the most important news from the report might be a list of Former Spouse Protection Act provisions that the Pentagon determined to be "reasonably effective" and should not be changed.
Many ex-spouses, for example, complain that their share of retired pay is reduced unfairly when retirees accept disability pay for their service-connected injuries and illnesses. Because retirees eligible for Veterans Administration compensation must accept a dollar-for-dollar cut in retired pay, this lowers the "disposable" retired pay divisible with ex-spouses. The Pentagon does not have a problem with that.
"Congress has chosen to give VA disability compensation a higher priority than payments to former spouses," the report says. "This is consistent with the treatment historically provided [to disability pay as] compensation owed to the member for injuries/wounds incurred in the service of the United States."
The report likewise dismisses an argument from retirees that division of retired pay should end if an ex-spouse remarries. This occurs with ex-spouses of CIA and Foreign Service retirees but it still is quite unusual, the report maintains.
"Military retirement is similar enough to other types of retirement that it does not merit being treated differently than virtually all other retirement benefits.... [S]tate courts, not federal law, should determine the effect of remarriage."
The report also dismisses a call by older former spouses that divorce settlements that became final before the Supreme Court's 1981 McCarthy decision should be reopened. It was that decision that spurred Congress to pass the act. But Congress specifically did not want the law to apply to pre-McCarthy divorces. It would be "inappropriate" to "allow former spouses to reopen divorce proceedings that have been closed for 18 or more years," the report says.