Congress still sees military ex-spouse law as untouchable.

Members and staff of the House and Senate armed services committees call it, variously, a “can of worms,” “Pandora’s Box,” or the proverbial “third rail” on the train track of military personnel initiatives. “You touch it, you die,” said one professional staff member.

The unpopular issue is the military ex-spouse law, also called the 1982 Uniformed Services Former Spouses Protection Act (USFSPA). Long ago, lawmakers ran out of creative excuses for ignoring the law’s weaknesses. Nowadays, they just compare it to a hornet nest and say they don’t want to get stung.

This year they avoided the issue again despite a new reason to consider USFSPA changes. In April, DoD commented on H.R. 1111, a bill introduced by Rep. Cass Ballenger (R-N.C.) to better protect military retirees when courts divide their annuities as property in divorce.

William J. Haynes II, DoD general counsel, told the House committee that the department supported only two of the bill’s provisions. One would end what retirees call “windfall” compensation to ex-spouses. This occurs when courts base their share of retired pay on promotions earned and additional years of service after the divorce. The second provision backed by DoD would block state courts from ordering service members to begin paying ex-spouses amounts equal to their share of retirement before members actually retire. Both provisions would apply only to divorces that become final after the bill was signed into law.

Despite DoD’s finding of real flaws in the law, the Armed Services Committee declined to include either corrective provision in its version of the 2005 Defense Authorization Bill.
 
Meanwhile, department opposition to the rest of H.R. 1111 left retiree advocates disappointed once again. Capt. Frank Ault, USN-Ret., executive director of the single-issue American Retirees Association, has worked for almost two decades to repeal or overhaul the USFSPA, which allows state courts to divide military retirement as property in divorce settlements.

He says Haynes’ letter to the committee attacked H.R. 1111’s “central theme,” which is to impose new limits on the number of years former spouses can receive court-awarded shares of military retirement.

Only ex-spouses from marriages lasting 20 military years or more would qualify for a life-long share. Otherwise, a share of retired pay would be proved only for a period equal to the duration of marriage while the member was in service. If a marriage lasted through 10 years and 9 months of military service, the obligation to share retirement also would be 10 years and nine months. Retirement shares of current ex-spouses also would fall under this limit, but they would be guaranteed at least 24 more months of payments. For future divorces only, payments would end upon a spouse’s remarriage.

DoD officials oppose all of these changes, which Ault finds discouraging. He says H.R. 1111 is the fifth major piece of legislation in the past two decades to try to modify the USFSPA to improve treatment of retirees. With each compromise made to win DoD support, he says, the department seems to become a stronger advocate for ex-spouses.

In 1990, he says, a senior defense official testified in favor of ending the division of military retirement when a former spouse remarries. The department now opposes the remarriage shutoff. That same DoD official 14 years ago said courts shouldn’t view military retirement the same as civilian pensions. But this past April Haynes wrote: “Military retirement is similar enough to other types of retirement programs that it does not merit being treated differently than virtually all other retirement benefits.”

Ault says “It appears the Department of Defense favors the welfare of ex-spouses [over] military members.”

Doris Mozley, an advocate for former spouses, also is disappointed with DoD’s stand on H.R. 1111 but for supporting two changes to USFSPA.

“If the wife has to wait another 10 years for her share of the pension, that means he is using her capital for 10 years without pay to her,” Mozley says. The wrong to that ex-spouse would be compounded, she says, if years spent waiting for her annuity had no positive effect on the value of her retirement share, through member promotions or more years served.

Ault says Haynes’ letter is a setback for ever achieving meaningful “reform” of the USFSPA. Most of Congress, apparently, can live with that.

Tom Philpott is a freelance writer and syndicated news columnist. His column, "Military Update," appears in 48 daily newspapers throughout the United States and overseas.