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Calling for a Truce on the Military Divorce Battlefield: A Proposal to Amend the USFSPA

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

I. Introduction

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.fn21...

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