SC Lawyer, January 2008, #3. Navigating the Uniform Services Former Spouse Protection Act.

• Author: By Patricia K. Hinshaw, Captain, U.S. Army

South Carolina Lawyer

2008.

SC Lawyer, January 2008, #3.

Navigating the Uniform Services Former Spouse Protection Act

South Carolina Lawyer January 2008 Navigating the Uniform Services Former Spouse Protection Act By Patricia K. Hinshaw, Captain, U.S. Army Imagine your client is a sergeant at Shaw Air Force Base. He has been married for eight years and is now contemplating divorce. He comes to you and wants to know whether he must split his future military retirement pension with his spouse. Or perhaps you are representing the wife of a colonel at Fort Jackson, and she wants to know whether she is going to lose her medical benefits through the Army when her husband divorces her after 22 years of marriage.

While many of these questions can be answered by the local military legal assistance office, nearly all military servicemembers and their spouses will seek civilian counsel while going through a divorce. During a recent Department of the Army poll of soldiers and spouses, divorce was their chief concern during deployment, outranking both death and injury. With our military forces deploying more frequently, the divorce rate continues to rise. In the Army alone, the divorce rate in 2003 and 2004 increased by 78% percent, more than triple the divorce rate in 2002.

Attorneys representing servicemembers and their spouses in a divorce must know how state law affects these potential clients and their interests. The Uniform Services Former Spouse Protections Act (USFSPA) creates several financial benefits for military spouses. More importantly, the USFSPA allows, but does not require, states to treat disposable military retired pay as marital property upon divorce regardless of how long the parties were married. Thus, state courts can divide the servicemember's military pension for purposes of property settlement, alimony and child support.

Military retired pay is often the largest asset that military families acquire during the course of marriage. Consequently, it frequently becomes the most hotly contested asset in divorce proceedings. This asset brings emotionally charged clients to both sides of the negotiating table. The servicemember often feels that the military pension is "his" asset alone, due to the hazards faced and sacrifice required during military service. This outlook is particularly common when only a brief portion of the marriage overlaps with the servicemember's 20 or more years of military service. Conversely, due to the frequent moves required of the military family to support the servicemember in an unconventional career field, spouses of servicemembers are often unable to work outside the home in their chosen field or build equity in a career that a less transient lifestyle would otherwise allow.

History of the USFSPA in South Carolina

Bugg and Carter

The seminal U.S. Supreme Court case involving the division of military retired pay is McCarty v. McCarty, 453 U.S. 210 (1981). Colonel and Mrs. McCarty were married nearly 20 years before petitioning the California Superior Court for divorce in 1976. In the divorce proceeding, the Court determined Colonel McCarty's disposable retired pay was distributable as quasi-community property. On appeal to the U.S. Supreme Court, the Court held Congress had preempted state courts from considering military retirement benefits in the distribution of marital property, and retired pay was a personal entitlement of the retiree. Therefore, state courts were precluded from dividing military retired pay between the parties upon divorce.

After McCarty, the issue of divisibility of military retired pay came before the S.C. Supreme Court in Bugg v. Bugg, ___ S.C. ___, 286 S.E. 2d 135 (1982) and Carter v. Carter, ___ S.C ___, 286 S.E. 2d 193 (1982). In both cases, the Court followed McCarty, finding that military retirement benefits were not marital property and therefore not subject to equitable division.

Uniform Services Former Spouse Protection Act

The Uniform Services Former Spouse Protection Act (USFSPA) was enacted in direct response to the McCarty decision. In 1982, Congress enacted 10 U.S.C. § 1804 and statutorily permitted courts to treat disposable retired pay as either (1) property solely of the servicemember, or (2) property of the servicemember and spouse in accordance with the laws of the jurisdiction of the court. This statute overruled McCarty and expressly authorized states to treat disposable military retired pay as marital property divisible in divorce.

Faced with these two options, the S.C. Supreme Court initially chose to treat military retired pay as an asset solely belonging to the servicemember in Brown v. Brown, ____ S.C. ____, 302 S.E. 2d 860 (1983). The Court held that military retirement pay, which is paid monthly to the retired servicemember from the date of retirement until death, was income to the servicemember. This income was not marital property subject to equitable distribution, but it could be properly considered as a factor in determining alimony to the servicemember's spouse.

Equitable apportionment of Marital Property Act

After the Brown decision, the playing field changed again when the South Carolina legislature adopted the Equitable Apportionment of Marital Property Act (EAMPA) (S.C. Code §20-7-471through-479). The EAMPA allows family courts to divide any marital property acquired by the parties during the course of their marriage. Marital property is further defined by Section 20-7-473 as all real and personal property acquired during the course of the marriage, regardless of how title is held. The statute contains five categories of property that do not become non-martial property, even if acquired during the marriage. Military retired pay does not fall into any of these five categories.

After the EAMPA was enacted, the issue of military retired pay came before the South

Carolina Supreme Court in Tiffault v. Tiffault, ___, S.C. ___, 401 S.E. 2d 157 (1991). The Court overruled its earlier determination that military retired pay should be treated as income. Instead...