40 MILITARY LAW REVIEW [Vol. 168
CALLING FOR A TRUCE ON THE MILITARY DIVORCE BATTLEFIELD:
A PROPOSAL TO AMEND THE USFSPA
MAJOR MARY J. BRADLEY1
Lieutenant Commander (Retired) Catherine Wdowiak sends
18.5% of her retired pay to a man she divorced in 1996 after he revealed he was having an affair. Her ex-spouse remarried and that couple now earns more than $100,000 per year . . . while she struggles to keep a fledgling business afloat on what remains of her retired pay, about $24,000 a year.2
A military divorce is not simply "the legal dissolution of a marriage by a court"3 with one party in the armed service.4 Parties to a military divorce must contend with emotional issues beyond who will have custody of the children and who will keep the house.5 A military divorce involves
dividing military retired pay, which is much more than a pension or 401K plan. Both service members and their spouses have a unique emotional attachment to military retired pay, which cannot equate to other marital property.
To service members, military retired pay represents twenty or more years of patriotic, selfless service to their country.6 Military retired pay is what is owed to them in return for living a life where at a moment's notice they could be sent anywhere in the world, possibly in the line of hostile fire. Military spouses have a different emotional attachment to military retired pay. To military spouses, the retired pay represents a partnership where they sacrificed their own careers and stability to follow their spouses, single-handedly cared for the children, and supported the military community. In addition to the emotional attachment, parties litigate div
sion of military retired pay because it is often the largest asset of the marriage.7
When both parties to a divorce adamantly believe that they are entitled to the military retired pay, courts often cannot equitably divide the retired pay to the parties' satisfaction. All the courts can do is apply the state divorce law and, where appropriate, the federal law specific to military divorce. In the case of military divorce, one federal law that preempts state domestic relations law is the Uniformed Services Former Spouses' Protection Act (USFSPA).8 Since Congress enacted the USFSPA in 1982, state courts have struggled with interpreting it in light of their own domestic relations laws. Enforcement loopholes, differing court interpretations, amendments to the USFSPA, and the changing role of women in society,9 all create situations where military divorce results in inequities, costly hearings, numerous rehearings, and even imprisonment.10
How did the USFSPA evolve into an inequitable and ineffective law? This question is troubling because Congress enacted the USFSPA11 to
resolve the inequities in military divorce and to recognize a spouse's important role in a military marriage.12 In its simplest terms, the USFSPA allowed that state courts may treat disposable retired pay as marital property.13 Despite Congress's intended corrective result, enacting the
USFSPA began nearly twenty years of litigation focusing on interpreting and applying this federal statute.14 Litigation and the resulting precedent-setting opinions are one factor in the evolution of the USFSPA.
The USFSPA also evolved through congressional amendments and revisions to address problems and oversights in the original law.15 Nearly every congressional session has attempted to resolve problems with the USFSPA.16 In the current Congress, Representative Cass Ballener17 introduced House Bill 1983, Uniformed Services Former Spouses Equity Act of 2001 (Equity Act), which addresses some of the highly controversial aspects of the USFSPA.18 While a similar bill, entitled the Equity Act of 1999, did not pass during the 106th Congress, with its primary sponsor, Representative Bob Stump, as the new chair of the House Armed Services Committee the current bill may receive more attention during this Congress.19 Despite congressional attempts to resolve issues with the USFSPA, neither former spouses nor former service members are satisfied with the current law.20 Many former spouses organizations, former se
vice member organizations, veterans advocacy organizations, and private organizations have recommended changes to the USFSPA.21 These changes are as diverse as they are controversial.
What is the main problem with the USFSPA? Is it the law itself? Is it how the courts interpret and apply the law? This article argues that the USFSPA can be an effective tool for dividing retired pay in a military divorce, but the federal procedures for enforcing the provisions of the USFSPA are incomplete and ineffective.22 Unnecessary requirements and loopholes in the law cause parties to endure more emotional turmoil and higher litigation costs than necessary.
Appropriate changes to the USFSPA can reduce the continued animosity over division of retired pay.23 To reach this goal, the USFSPA must provide thorough procedural tools to make state courts' orders effective and enforceable and continue to allow states to apply their own domestic relations laws. State court control of military retired pay combined with complete procedural and administrative policies can bring equity to military divorces. This article recommends changes to the USFSPA and proposes legislation as an equitable solution to this contentious law.
To arrive at the legislative proposal, which is presented in the Appendix, the following section of this article, Section II, reviews the history of the USFSPA. This historical review discusses the case that triggered the USFSPA, McCarty v. McCarty, and Congress's intent when passing the USFSPA. In Section III, this article describes the current state of the law-
the USFSPA and its application. In Section IV, this article reviews the various parties' positions and suggestions for changing the USFSPA, including former service members, former spouses, and the Department of Defense (DOD). While this article supports many of the parties' recommended changes, those not advocated by this article are discussed within Section IV.
Section V of this article proposes changes to the USFSPA, including an explanation of each problem, proposed changes, and factors that Congress must consider before enacting each revision. This article proposes many statutory changes to the USFSPAsome revisions are substantive, while others are procedural and will advance administration of the USFSPA. All the proposed changes will make the USFSPA a more equitable law. Finally, following a conclusion, this article presents proposed legislation in the Appendix.
II. History of the USFSPA
A. Origins of the USFSPA: McCarty v. McCarty
Congress passed the USFSPA24 in direct response to the U.S. Supreme Court decision in McCarty v. McCarty.25 On 4 November 1981, within five months of the McCarty decision, Senator Roger Jepsen introduced the USFSPA as Senate Bill 1814.26 Less than a year later, Congress enacted the USFSPA.27 To understand the congressional intent behind such hasty action,28 the McCarty decision and its impact must be explained.
In McCarty, the Supreme Court contemplated whether federal statutes preempt state courts from dividing non-disability retirement benefits upon divorce. Concerning preemption in general, the Supreme Court has said,
"[I]f Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted."29 With respect to preempting domestic relations law, the Supreme Court has held that "state interests . . . in the field of family and family-property arrangements . . . should be overridden . . . only where clear and substantial interests of the National Government . . . will suffer major damage if the state law is applied."30
Applying this definition of preemption, the Supreme Court reviewed the facts and legal arguments in McCarty. Colonel and Mrs. McCarty had been married for almost twenty years when they divorced in 1976.31 In the divorce proceedings, the superior court ruled that Colonel McCarty's military retired pay was distributable as "quasi-community property."32
On appeal to the Supreme Court, Colonel McCarty raised two arguments. While preemption was the second argument, the first argument is worthy of discussion because former service members still use this argument to lobby for re-characterizing military retired pay. In his first argument, Colonel McCarty argued that military retired pay was not subject to division as marital property because it was different than civilian retired pay.33 In support, Colonel McCarty cited federal cases to establish that military retired pay is actually reduced current pay for continued service in the armed forces at a reduced level.34 Under this theory, military retired pay, unlike civilian retired pay, is not considered an asset earned during
employment with payment deferred until retirement. Rather, by remaining on the retired list, military retirees continue to serve in a reduced capacity subject to recall. Consequently, their military retired pay is a monthly pay in return for their reduced service.35 However, the Court did not adopt this theory. Instead, the Court focused on Colonel McCarty's second argument, preemption.
Colonel McCarty's second argument was that a conflict existed between the terms of the federal retirement statutes and the state community property right asserted by his former spouse.36 Specifically, the state property rights allowing division of military retired pay significantly affected the purpose of the federal military personnel program, such that the court should not recognize the community property right.37
Colonel McCarty argued that military retirement benefits constituted an important part of Congress's goal of meeting the personnel management needs of the active military forces.38 Specifically, retired pay was designed to induce enlistment and reenlistment, to create an...