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Thread: Uniformed Services Former Spouse Protection Act (USFSPA)

  1. #251
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    Re: Uniformed Services Former Spouse Protection Act (USFSPA)

    Quote Originally Posted by USN - Retired View Post
    There should definitely be some limits. Some direction and guidance would be good so that the pay is divided in a consistent manner in a divorce. Allowing a state court to give a former military spouse a lifetime cut of the military retirement pay after a marriage of less than ten years is ridiculous.

    I would be VERY happy if USFSPA would be modified to include a table of "equivalent value" based on a member's years and rank at the time of divorce to enable a lump sum payment (mainly for marriages less than 20 years). I know that you have supported that idea in previous posts, but it is a good idea and it is worth repeating. The involuntary separation pay tables for military service members who are involuntarily separated from active duty would be a good place to start for a USFSPA table of "equivalent value" (see post #105 for more details). The USFSPA modification could also include a statement that, for marriages that do not meet the USFSPA 20/20/20 rule, the family court judge should follow the USFSPA table of "equivalent value" except in extreme cases.
    Yes, I think the equivalent value would be an excellent solution...

    Jefferson Davis and George Wallace would definitely agree with you on that point.
    They would also agree with you that Tuesday follows Monday. I believe Hitler would also agree with you there.

    Here's my thought on States' rights: States' rights doesn't mean that we should sit by and do nothing when the states are acting in an egregious manner.
    If 50 out of 50 states are doing things in a similar manner...it would seem difficult to call that egregious. Although, yeah at one point all the states allowed slavery or whatever...dividing compensation that was earned during a marriage as marital property is not in the same ballpark.

    Here are some questions for discussion:

    Why does USFSPA contain the 10/10 rule? Did the federal government (congress) believe that military retirement pay should NOT be divided when the 10/10 rule was not met? Did the federal government (congress) decide that it would not prohibit a state from dividing a military retirement pay for a marriage of less than ten years, but it also would not facilitate the division of that retirement pay? Was the intent of the USFSPA 10/10 rule to discourage the division of military retirement pay for short term marriages? Was the USFSPA 10/10 rule an attempt by congress to mirror Social Security's 10 year rule regarding social security payments to divorced spouses.

    What would happen if the USFSPA 10/10 rule were eliminated? Currently, the pay checks of over 100,000 retired military personnel are being divided by USFSPA enabled divorce court decrees. Only those marriages that meet the USFSPA 10/10 rule (10 years of marriage as the spouse of an active duty person) are being divided by DFAS. More than 100,000 is a lot of divorced couples and a lot of paperwork for DFAS. DFAS personnel have to review the divorce court documents for each of those former couples, over 100,000 divorces, and also set up an account for each of the former spouses. New divorce packets are flowing into DFAS daily and have to be reviewed and entered into the system. Former spouses have to be dropped out of the system when they die. DFAS needs many personnel to process all that paperwork. If the USFSPA 10/10 rule were eliminated, how many divorce packets will DFAS have to process? 200,000? 300,000? How many extra personnel will DFAS need to process that extra paperwork?

    Currently, it is possible that many former military spouses don't even bother to ask for a part of the military retirement pay if the marriage was less than 10 years. The former military spouse might just ask for a larger share of the joint bank accounts instead. If the USFSPA 10/10 rule were eliminated, would a larger number of military spouses in short term marriages (i.e. less than 10 years) ask for a share of the military retirement pay knowing that they would be able to get it direct from DFAS? If they do, then can DFAS handle all that paperwork?
    I don't know why, specifically, the 10/10 rule was put in place.

    If I had to speculate, I would say, yes there is considerable work involved in DFAS doing all this...so, congress felt that work was only justified in protecting a signficant sized asset...and that a less than 10 year marriage would not be considered significant enough to justify the additional cost to the govt in protecting that interest. Like here in California, you're only supposed to call the cops if a traffic accident has an injury, or property damage estimated to be over $750. If it's less than that, the amounts do not justify the govt. protection of the interests involved...you trade names and insurance and go on your way. So, if a spouse is awarded 2.5% after 1 year of marriage, that isn't enough of a financial interest to justify federal govt oversight.

    If I were correct in that speculation, one might think it would have made more sense for DFAS to only enforce awards over a certain percentage or dollar amount, rather than a certain timeframe. So, there is a good chance I'm way off on that speculation.

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    Re: Uniformed Services Former Spouse Protection Act (USFSPA)

    Quote Originally Posted by Measure Man View Post
    They would also agree with you that Tuesday follows Monday. I believe Hitler would also agree with you there..
    I haven't worked in over seven years. Every day is a Saturday for me. In my universe, Monday's and Tuesday's don't exist.

    No insult intended on the comparison between you and Jefferson Davis and George Wallace. I'm sure that you disagree with many of their opinions.

    But my point is...sometimes the states go too far and the federal government needs to keep the states in check. "States rights" doesn't mean the states have the "right" to violate peoples' civil rights.

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    Re: Uniformed Services Former Spouse Protection Act (USFSPA)

    Quote Originally Posted by Measure Man View Post
    ...dividing compensation that was earned during a marriage as marital property is not in the same ballpark..
    In divorce courts today, dividing money that was earned during a marriage as marital property is widely accepted by the vast majority of people in this country because the money that is usually divided is money that was predominately earned by men. If the money that is usually divided in a divorce is money that was earned predominately by women, vast numbers of people would be screaming of the injustice.

    More and more women are entering the workforce. It is possible, though unlikely, that someday the money that will be divided in divorces will be money predominately earned by women. If that happens, then watch how quickly the divorce laws will change and the whole concept of marital property will just simply disappear.

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    Re: Uniformed Services Former Spouse Protection Act (USFSPA)

    Quote Originally Posted by USN - Retired View Post
    In divorce courts today, dividing money that was earned during a marriage as marital property is widely accepted by the vast majority of people in this country because the money that is usually divided is money that was predominately earned by men. If the money that is usually divided in a divorce is money that was earned predominately by women, vast numbers of people would be screaming of the injustice.

    More and more women are entering the workforce. It is possible, though unlikely, that someday the money that will be divided in divorces will be money predominately earned by women. If that happens, then watch how quickly the divorce laws will change and the whole concept of marital property will just simply disappear.

    There is a courtroom drama novel in you somewhere

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    Re: Uniformed Services Former Spouse Protection Act (USFSPA)

    Quote Originally Posted by Shaken1976 View Post
    I see what you are saying. On that same note, if a military couple saves wisely and has a nice chunk in the bank and then divorces the spouse could end up with half. Then half of his retirement for the rest of her life. I am glad it isn't automatic because I don't think all spouses are entitled to half. I saw one wife who got her family kicked out of base housing for drug violations, she was banned from driving on base, banned from the BX, and when they got divorced she still ended up with half his retirement. SAD.
    Not just sad, but pathetic. How in any realm of common sense can a judge say she has earned half his retirement is beyond me.

    Yes, of course. And half the house, half the cars, etc. Everything earned during the marriage is marital property. If you don't want to share with another person, do not get married.
    Wise words.. Hence if i do ever get married, i will have my own account, she hers, and that's that.

    In divorce courts today, dividing money that was earned during a marriage as marital property is widely accepted by the vast majority of people in this country because the money that is usually divided is money that was predominately earned by men. If the money that is usually divided in a divorce is money that was earned predominately by women, vast numbers of people would be screaming of the injustice.
    Exactly. Its like other things in society. When it screws guys over, its ok. When it screws women over, its wrong.

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    Re: Uniformed Services Former Spouse Protection Act (USFSPA)

    Quote Originally Posted by Measure Man View Post
    I believe it is you and your attorney's job to provide guidance to the court, using both the USFSPA and your state law. Particularly since the federal govt. could not do so without intruding into state law.

    It is true that many judges may not be well versed in military retirement. That can be true of every law. Judges can not be well-versed in everything, which is why attorney's should inform them. This is why you need an attorney that is well-versed in the laws most applicable to your case. This is why you have injury attorney's that specialize in car accidents, or worker's comp. You have criminal lawyers that specialize in DUI, or homicide, or sexual assault. You have divorce lawyers that specialize in military divorces.



    Yes, and even you say there are times when it should



    I don't see it as a logic fail, just a difference of opinion as to whether or not you are earning your retirement with each year spent on active duty or not.



    Interestingly enough, my divorce decree required me to assist my ex- in doing the retirement paperwork through DFAS. I'm guessing the judge had some previous experience with a spouse having a difficult time navigating the DFAS system...becasue neither of us asked for that to be in there.
    I didn't intend to say the federal government would advise courts in divorce cases but some language in the law which correctly characterizes the nature of military service and the requirements to earn military pay and to correctly describe it as DoD officials did prior to passage of the law might go some distance towards the courts having enough information which might result in fair division of the pay (or no division as warranted).

    Finding legal representation well versed in the USFSPA is usually dependent on your vicinity to military bases. My personal experience which was not close to a military base (from the arbitrator to the court officers) was repeated declarations of ignorance in the details of the USFSPA. They knew the law existed and that it said military retired pay could be divided. I truly believe that in many (perhaps most) divorces this is the sum total of the thought process and therefore why I believe that, yes not mandatory, the USFSPA results in the reality that military pay is typically divided exactly along guidelines provided in the law and by DFAS.

    I understand our difference of opinion but not the comment about earning retirement pay every year of service.
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    Re: Uniformed Services Former Spouse Protection Act (USFSPA)

    Quote Originally Posted by Measure Man View Post
    What? Why are military retirements what you consider "Pay" but other retirement payments are not? Please explain the difference. My dad gets a payment every month from his company pension, just like I get a military one.
    For Seamen/Marines, it can be a bit more complicated than that... They can elect to go into the Fleet Reserve until they hit their MSD or max age whereas everyone else just goes into the Retired Reserve...not sure how valid that argument is but....

    Quote Originally Posted by USN - Retired View Post
    I think that you may have missed my point. I am suggesting that government get COMPLETELY out of the business of regulating marriages, ALL marriages. It will probably never happen, but I am hopeful nonetheless.
    I don’t think you REALLY want that....people could then marry kids, goats, whatever...not sure you are a supporter of THAT are you? As it pertains to this discussion, I wouldn't be a fan either. Sometimes the spouse DOES need some protection from just being kicked to the curb with nothing. Not as often these days but sometimes they do. Also, where there is a disagreement, SOMEONE has to mediate and who better than the courts?

    Quote Originally Posted by TJMAC77SP View Post
    I am not missing the point.
    Now you say that the 10/10 rule isn’t mandatory and again you are technically correct as a judge has pretty wide leeway to make rulings but again, getting those rulings enforced is another matter. A matter of reality. There are simply no realistic enforcement vehicles open to courts in getting the retirement pay divided.
    Actually TJ, I think you are.... Forget the "10/10 rule" just for a second. Say you are not in the military and your ex is awarded child support and/or alimony. Would you pay? Do you think they could MAKE you pay? Would you be willing to go to jail to avoid paying? If your answers are "no, no, yes" then you are right. Without the 10/10 rule you wouldn't have to pay. However, most people are more likely than not to follow a court order even if they don't like it. Just because DFAS isn't taking it out automatically doesn't mean it isn't legally enforceable. ALL the "10/10 rule" says is that IF met, DFAS can make the court order automatic... It doesn't have anything to do with the judgment itself...

    Quote Originally Posted by Measure Man View Post
    [Depending on your state, he may be able to garnish your wages from other employment...which makes me wonder whether or not a former spouse can garnish and "equivalent" or based on an amount that is owed in arrears or something from your civilian wages.
    Absolutely. However, when you stop working, unless you meet the "10/10 rule" that leverage goes away...
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