Posted on 02/15/2004 5:47:12 PM PST by aviator
Uniformed Services Divorce Equity Act of 2003 (Introduced in House) HR 1111 IH
108th CONGRESS 1st Session
H. R. 1111
To amend title 10, United States Code, to revise the rules relating to the court-ordered apportionment of the retired pay of members of the uniformed services to former spouses, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
March 6, 2003
Mr. BALLENGER (for himself, Mr. ANDREWS, Mr. SANDLIN, Mr. SOUDER, Mr. BEAUPREZ, Mr. GOODE, Mr. GRIJALVA, Mr. LAHOOD, Mrs. MYRICK, Mr. CUNNINGHAM, and Mr. HOSTETTLER) introduced the following bill; which was referred to the Committee on Armed Services, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend title 10, United States Code, to revise the rules relating to the court-ordered apportionment of the retired pay of members of the uniformed services to former spouses, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Uniformed Services Divorce Equity Act of 2003'.
SEC. 2. PROPORTIONATE DIVISION OF RETIRED PAY FOR FORMER SPOUSES.
Section 1408(c) of title 10, United States Code, is amended by adding at the end the following new paragraph:
`(5)(A) In the case of a court order issued on or after the date of the enactment of the Uniformed Services Divorce Equity Act of 2003 in which the court, pursuant to paragraph (1), provides for treatment of the disposable retired pay of a member as property of the member and the member's spouse, the court (unless otherwise expressly provided for by a spousal agreement) shall award the spouse or former spouse a share of such retired pay as follows:
`(i) If the spouse or former spouse was married to the member throughout the service of the member that is creditable for computation of retired pay, a share equal to 50 percent of the disposable retired pay of the member.
`(ii) If the spouse or former spouse was not married to the member throughout the service of the member that is creditable for computation of retired pay, a share equal to that proportion of 50 percent of the disposable retired pay of the member that is the proportion that--
`(I) the number of days of the marriage of the former spouse to the participant during periods of such creditable service bears to the total number of days of such creditable service; or
`(II) in the case of a member for whom retired pay is payable under chapter 1223 of this title, the number of points credited under section 12733 of this title for computation of the member's retired pay that accrued during the period of marriage bears to the total number of points credited under that section for computation of the member's retired pay.
`(B) In subparagraph (A), the term `spousal agreement' means an agreement between a member and the member's spouse or former spouse that--
`(i) is in writing, is signed by the parties, and is notarized; and
`(ii) has not been modified by court order.'.
SEC. 3. DURATION OF PAYMENT OF RETIRED PAY TO FORMER SPOUSES.
(a) LIMITATION- Section 1408(c) of title 10, United States Code, is amended by adding after paragraph (5), as added by section 2, the following new paragraph:
`(6)(A) If the period of the marriage during which time the member was qualifying for retired pay through military service is less than 240 months, payments under paragraph (1) shall be made by the member to the former spouse for a period equal to the number of months of the marriage during which time the member was qualifying for retired pay through military service, except that, in the case of payments made pursuant a court order of divorce, dissolution, annulment, or legal separation issued after the date of the enactment of Uniformed Services Divorce Equity Act of 2003, such payments shall terminate upon the remarriage of the former spouse, if such remarriage occurs before the end of such period.
`(B) If the period of the marriage during which time the member was qualifying for retired pay through military service is 240 months or more, payments under paragraph (1) shall terminate in accordance with the terms of the applicable court order, but not later than the date of the death of the member or the date of the death of the spouse or former spouse to whom payments are being made, whichever occurs first.'.
(b) TERMINATION OF DEPARTMENT OF DEFENSE PAYMENTS- Section 1408(d)(4) of such title is amended--
(1) by inserting `(A)' after `(4)'; and
(2) by adding at the end the following:
`(B) In the case of payments from the disposable retired pay of a member pursuant to this section that are subject to termination by reason of subsection (c)(6)(A), the Secretary concerned shall terminate such payments--
`(i) upon written request of the member, if information in possession of the Secretary or provided by the member is sufficient for the Secretary to conclude that the provisions for termination under subsection (c)(6)(A) are satisfied; or
`(ii) upon effective service of a court order modifying the court order under which the payments to the member's spouse or former spouse have been made.'.
(c) TRANSITION PROVISION-
(1) MARRIAGES TERMINATED BEFORE ENACTMENT- With respect to a court order issued before the date of the enactment of this Act, if the length of the marriage before the court order during which time the member was qualifying for retired pay through military service was less than 240 months--
(A) if payments by the member to the spouse or former spouse as of the date of the enactment of this Act have been made for less than the number of months of the marriage during which time the member was qualifying for retired pay through military service, payments shall continue in the amount specified in the court order until such payments have been made for the number of months of the marriage during which time the members was qualifying for retired pay through military service, but in no event shall such payments terminate by reason of this paragraph sooner than the end of the 24-month period beginning on the date of the enactment of this Act; and
(B) if payments by the member to the former spouse as of the date of the enactment of this Act have been made for a period equal to or greater than the number of months of the marriage during which time the member was qualifying for retired pay through military service, payments shall terminate 24 months after the date of the enactment of this Act, unless sooner terminated under some other provision of law.
(2) APPLICABILITY OF DOD TERMINATION PROVISIONS- Subparagraph (B) of subsection (d)(4) of section 1408 of title 10, United States Code, as added by subsection (b), shall apply to the provisions of paragraph (1) of this subsection in the same manner as to subsection (c)(6)(A) of such section 1408, as added by subsection (a).
(3) COURT ORDER DEFINED- In this subsection, the term `court order' has the meaning given that term in section 1408(a)(2) of title 10, United States Code.
SEC. 4. AWARD OF RETIRED PAY TO BE BASED ON RETIREE'S LENGTH OF SERVICE AND PAY GRADE AT TIME OF DIVORCE.
Section 1408(c) of title 10, United States Code, is amended by adding after paragraph (6), as added by section 3(a), the following new paragraph:
`(7) In the case of a member as to whom a final decree of divorce, dissolution, annulment, or legal separation is issued on or after the date of the enactment of the Uniformed Services Divorce Equity Act of 2003 and before the date when the member begins to receive retired pay, the disposable retired pay of the member that a court may treat in the manner described in paragraph (1) shall be computed based on the pay grade and the length of service of the member while married to the spouse or former spouse that are creditable toward entitlement to basic pay and to retired pay as of the date of the final decree. Amounts so calculated shall be increased by the cumulative percentage of increases in retired pay between the date of the final decree and the effective date of the member's retirement.'.
SEC. 5. PROHIBITION ON COURT ORDERING PAYMENTS BEFORE RETIREMENT BASED ON IMPUTATION OF RETIRED PAY.
Section 1408(c)(3) of title 10, United States Code, is amended--
(1) by inserting `(A)' after `(3)'; and
(2) by adding at the end the following:
`(B) After the date of the enactment of the Uniformed Services Divorce Equity Act of 2003, a court may not order a member to make payments to a spouse or former spouse before the date of the member's retirement based upon an imputation of a property interest in future retired pay.'.
SEC. 6. LIMITATION ON TIME FOR SEEKING DIVISION OF RETIRED PAY.
(a) IN GENERAL- Section 1408(c)(4) of title 10, United States Code, is amended--
(1) by inserting `(A)' after `(4)'; and
(2) by adding at the end the following new subparagraph:
`(B) In order to be eligible to receive payments from the disposable retired pay of a member in the manner described in paragraph (1), the member's spouse or former spouse must obtain a court order for the treatment of the disposable retired pay of the member as property of the member and the member's spouse not later than two years after the date of a final decree of divorce, dissolution, annulment, or legal separation, including a court ordered, ratified, or approved property settlement incident to such a decree.'.
(b) PROSPECTIVE APPLICATION- The amendment made by subsection (a) shall apply with respect to final decrees of divorce, dissolution, annulment, or legal separation issued on or after the date of the enactment of this Act.
(c) IMPLEMENTATION- With respect to payments to a spouse or former spouse from a member's disposable retired pay pursuant to a final decree of divorce, dissolution, annulment, or legal separation issued before the date of the enactment of this Act, if more than two years have elapsed between the date of the final decree of divorce, dissolution, annulment, or legal separation and the issuance of a court order for the apportionment of the disposable retired pay of a member, a court may not order that payments of retired pay to a former spouse be made retroactive to the date of the final decree of divorce, dissolution, annulment, or legal separation.
SEC. 7. TERMINATION OF LIABILITY FOR PAYMENTS TO FORMER SPOUSES.
Subsection 1408(d)(4)(A) of title 10, United States Code, as redesignated by section 3(b)(1), is amended by inserting `and liability therefor' after `section'.
SEC. 8. PROHIBITION ON APPORTIONMENT OF DISABILITY PAY.
(a) IN GENERAL- Subsection 1408(e)(4) of title 10, United States Code, is amended by adding at the end the following new subparagraph:
`(C) Notwithstanding any other provision of law, a court may not treat as part of the disposable retired pay of a member under this section or as part of amounts to be paid by a member pursuant to legal processes under section 459 of the Social Security Act (42 U.S.C. 659) for the purpose of alimony payments to a former spouse, amounts that--
`(i) are deducted from the retired pay of such member as a result of a waiver of retired pay required by law in order to receive disability compensation under title 38; or
`(ii) in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability list).'.
(b) AMENDMENTS TO SOCIAL SECURITY ACT- Section 459(h) of the Social Security Act (42 U.S.C. 659(h)) is amended--
(1) in paragraph (1)(A)(ii)(V), by striking all that follows `Armed Forces' and inserting a semicolon; and
(2) by adding at the end the following new paragraph:
`(3) LIMITATIONS WITH RESPECT TO COMPENSATION PAID TO VETERANS FOR SERVICE-CONNECTED DISABILITIES- Notwithstanding any other provision of this subsection--
`(A) compensation described in paragraph (1)(A)(ii)(V) shall not be subject to withholding pursuant to this section--
`(i) for payment of alimony; or
`(ii) for payment of child support if the individual is fewer than 60 days in arrears in payment of the support; and
`(B) not more than 50 percent of any payment of compensation described in paragraph (1)(A)(ii)(V) may be withheld pursuant to this section.'.
(c) EFFECTIVE DATE- The amendments made by subsections (a) and (b) shall apply to court orders and legal processes issued on or after June 25, 1981. In the case of a court order or legal process issued before the date of the enactment of this Act, such amendments shall apply only with respect to retired pay payable for months beginning on or after the date of the enactment of this Act.
SEC. 9. TECHNICAL CORRECTIONS.
(a) GENDER-NEUTRAL REFERENCES- Section 1408 of title 10, United States Code, is amended as follows:
(1) Subsection (c)(1) is amended by striking `the member and his spouse' and inserting `the member and the member's spouse'.
(2) Subsection (c)(4)(A) is amended by striking `his' each place it appears and inserting `the member's'.
(3) Subsection (d)(5) is amended by striking `the member and his spouse' and inserting `the member and the member's spouse'.
(4) Subsection (g) is amended by striking `his' and inserting `the member's'.
(b) DATE OF ENACTMENT REFERENCE- Subsection (d)(6) of such section is amended by striking `on or after the date of the enactment of this paragraph' and inserting `after August 21, 1996,'.
(c) SUBSECTION CAPTION- The heading for subsection (e) of such section is amended to read as follows: `MULTIPLE COURT ORDERS- '.
H.R. 1111: SECTION BY SECTION ANALYSIS
Section 1 (Title)
Section 1 identifies the bill as the Uniformed Services Divorce Equity Act of 2003 (Act). It would amend the Uniformed Services Former Spouses Protection Act (USFSPA), Pub. Law 97-252, 10 U.S.C. 1408 et seq., enacted in 1982 with an effective date of Feb. 1, 1983.
Section 2 (Formula for Division of Retired Pay)
Section 2 codifies the procedure now widely used in state courts for dividing military retired pay as property. The former spouse would receive a percentage of 50%, or half, of the member's retired pay. The percentage is determined by dividing the length of the marriage, in months or years, while the member was qualifying for retired pay by the total time during which the member qualified for retired pay. Example: if a marriage lasted 15 years while the member was on active duty, and the member retired with 20 years' service, the former spouse would receive 15/20, or _, of 50% of the member's retired pay. In the case of reserve and National Guard members (who receive retired pay under Chapter 1233 of Title 10), the percentage is determined on the basis of points earned toward retired pay.
Exception. This section also provides an exception to the proportionate formula, in instances where the member and former spouse voluntarily agree to some other approach as part of a spousal agreement. This is intended to provide flexibility for the parties so that, for example, the member could make a greater up-front payment to the former spouse in exchange for a lesser amount from the member's retired pay than would have been the case had the formula been applied.
Section 3 (Limitations on Duration of Payments of Retired Pay)
Under current law, former spouses who were married to a military member for fewer than 20 years while the member was qualifying for retired pay can receive payments of the member's retired pay for life as "property." However, the member must serve at least 20 years to qualify for retired pay. Section 3 corrects this fundamental inequity by relating the duration of payments to the time "served" as a military spouse, i.e., the length of the marriage concurrent with the member's military service.
Section 3 links the duration of such payments to the duration of the marriage. Where the period of the marriage while the member was qualifying for retired pay is less than 20 years, payments from retired pay would be made for the number of years married while the member was qualifying for retired pay. Where the duration of the marriage was 20 years or more, payments would continue for life, i.e., until the death of the former spouse or the member, whichever occurs first.
Prospective Remarriage Provision. For marriages terminated after enactment of the Act -- where the duration of a marriage was less than 20 years concurrent with military service -- payments of retired pay as property would be limited to the number of years married while the member was qualifying for retired pay, or, until the former spouse remarries, whichever occurs first. This provision would bring military retired pay into line with other federal retirement and survivor benefit programs.
For example, retirement payments to former spouses of Foreign Service personnel are terminated upon remarriage of the former spouse before age 55. For the CIA, payments to former spouses are terminated upon remarriage of the former spouse before age 60. Under the military Survivor Benefit Plan (SBP), annuities to widows or widowers of former spouses terminate if the recipient remarries before age 55.
Divorces Prior to Enactment. For marriages terminated before enactment:
If the length of the marriage while the member was qualifying for retired pay was less than 20 years, payments would be made in accordance with the court order for the number of years of the marriage while the member was qualifying. Payments would then stop.
If, at the time of enactment, payments have already been made for a period of time equal to or greater than the number of years of marriage while the member was qualifying for retired pay, the obligation for such payments would end. However, there would be a two-year period of continued payments after the date of enactment, as a transitionary measure. This is intended to cushion former spouses from the financial impact of the provision.
As a further transitionary protection for former spouses, where payments under the new limitations come to an end within two years of the date of enactment, such payments would continue until the end of the two-year period after enactment.
If the length of the marriage while the member was qualifying for retired pay was 20 years or more, payments would continue until the death of the former spouse or the member, whichever occurs first.
There is no retroactive termination of payments for divorces that occurred prior to enactment.
Termination of Payments by DFAS. Section 3(b) of the bill states how payments being made to former spouses by the Defense Finance and Accounting Service (DFAS) can be terminated. In instances where the member has made payments for the number of years of marriage concurrent with military service, or (for divorces occurring after enactment) where the former spouse remarries prior to full payment for years of concurrent marriage, DFAS payments can be ended in one of two ways: 1)upon written request from the member, where DFAS has sufficient information on the member's payment history to the former spouse, or, 2)when DFAS receives a court order modifying the original court order under which payments were being made.
This provision is intended to relieve members from having to obtain court orders, when DFAS has sufficient information on hand to implement the termination provisions of the Act.
Termination of Payments by Members. The Act does not provide procedures for terminating payments being made by members directly to former spouses. The safest course would be for a member to obtain a court order modifying the court order under which payments are being made.
Rationale. By requiring that former spouses "serve" at least 20 years to qualify for lifetime payments, Section 3 would have the following beneficial effects:
As stated above, it would put the former spouse qualification for lifetime receipt of retired pay on equal footing with the qualification of military members to receive retired pay. This is a matter of basic fairness.
It would establish federal limitations on the states' ability to divide military retired pay. The U.S. Supreme Court, in its landmark 1981 McCarty v. McCarty decision (453 U.S. 210), recognized military retired pay as an important federal program designed to reward faithful and dangerous service, serve as an inducement for enlistment and reenlistment, and encourage orderly promotion and a youthful military. Section 3 would reassert Congress' exclusive role in providing for the national defense by setting new limitations on the ability of the states to alter the payment of military retired pay.
It would recognize the sacrifice and valuable contributions of former spouses when such services occurred during the entire time the military member was qualifying for retired pay. It does so by providing lifetime payments for such former spouses, such as they currently receive.
Section 4 ("Windfall Benefit")
Section 4 restricts awards under the USFSPA to an amount or percentage of the member's retired pay based on pay grade and length of service at the time of divorce, not retirement. It also ensures that former spouses receive increases based on cumulative percentage increases in retired pay between the time of divorce and time of the member's retirement.
This amendment applies to situations where the divorce occurs prior to the member's retirement. It would close the so-called "windfall benefit" loophole. Under current law, former spouses may be awarded a percentage or dollar amount of a member's retired pay calculated at the time of retirement. This is true even though the divorce may have taken place long before the member's retirement, when the member was in a lower pay grade. Thus, former spouses often share in the additional monies earned by the military member based on continued promotions and
additional lengths of service occurring after the divorce, in which the former spouse had no role.
Section 4 corrects this inequity.
Prospective Application. The provision applies to divorces occurring on or after the date of enactment of the Act.
Section 5. (Prohibition on Payments Before Retirement)
Section 5 specifically prohibits courts from ordering members to impute payments from retired pay and make such payments to former spouses as property until the member actually retires.
Section 6 (Statute of Limitations)
Section 6 establishes a two-year statute of limitations. Former spouses would have two years from the date of divorce to obtain a court order apportioning the member's retired pay. Currently, there is no limitation of any kind. This permits former spouses to make claims on retired pay years after a divorce has occurred, making retirees liable for large arrearages as well as prospective payments. The intent of the amendment is to require the parties in a military divorce to resolve issues relating to apportionment of retired pay in a timely manner, during the divorce proceedings or shortly thereafter, so both parties can make long-term financial plans with confidence.
Prospective Application. The provision would apply to divorces issued on or after the date of enactment.
Limitation on Retroactive Payments. In the case of divorces that occurred prior to enactment, courts are prohibited from ordering retroactive payments to former spouses in cases where more than two years has elapsed between the divorce and the issuance of a court order for property payments from the member's retired pay.
Section 7 (Termination of Liability)
Section 7 amends the current law by providing that not only do payments to former spouses terminate upon the death of the member or former spouse, whichever occurs first, but also liability for such payments.
Thus, under the new approach contained in the Act, where former spouses receive payments commensurate with the number of years married while the member is qualifying for retired pay, if the former spouse were to die prior to end of the member's obligation to make payments there would be no requirement for the member to continue payments to the former spouse's estate.
Section 8 (Disability Pay)
Section 8 contains an absolute prohibition against (i) the apportionment of disability pay paid by the Department of Veterans Affairs (VA), where retired pay is waived to receive such disability pay, and by the Department of Defense (DOD), and (ii) the garnishment of such disability pay for alimony under section 459 of the Social Security Act (42 U.S.C. 659).
The provision is intended to prohibit once and for all the division by courts of military disability pay for payment to former spouses. This is consistent with the 1989 U.S. Supreme Court decision in Mansell v. Mansell (490 U.S. 581), which clearly held that that only a military member's "disposable retired pay" - specifically excluding disability pay - is subject to apportionment for payment to former spouses.
The provision also resolves a conflict between the USFSPA and the Social Security Act over the apportionment of VA disability pay received in lieu of waived retired pay. Under the USFSPA, only "disposable retired pay" may be divided by the courts for payments to former spouses. Disposable retired pay is defined to exclude both (i) amounts of retired pay waived in order to receive VA disability pay (Title 38, U.S. Code) and (ii) DOD disability pay (Chapter 61, Title 10, U.S. Code). Notwithstanding these restrictions, the Social Security Act (42 U.S.C. 659(h)) specifically permits the garnishment by former spouses of VA disability pay received in lieu of waived retired pay for payments of alimony and child support. In addition, some courts have permitted the garnishment of DOD disability pay.
Section 8 resolves the ambiguity in the law by:
* Amending the USFSPA to provide that under no circumstances may state courts include VA or DOD disability pay as (i) part of disposable retired pay of the member for purposes of property payments under 10 U.S.C. 1408, or (ii) as part of amounts that can be garnished as alimony under 42 U.S.C. 659; and
* Amending 42 U.S.C. 659 to modify language authorizing the garnishment of VA disability compensation received in lieu of waived retired pay, prohibiting such garnishment for purposes of alimony payments.
Garnishment for Child Support Allowed. The effect of these changes would be to prohibit garnishment of disability pay for alimony, but permit such garnishment for purposes of child support.
Prospective Effect. The changes would apply to court orders and legal processes issued on or after June 25, 1981. In the case of court orders or legal processes issued prior to enactment, the effect would be prospective only, that is, applying only to pay periods after enactment of the Act. Retirees would not be able to recoup previous payments to former spouses from VA or DOD disability compensation.
Section 9 (Gender-Neutral Designations)
This provision makes technical corrections, including changing six "his" references in the original USFSPA to "the member's."
COSPONSORS(21), ALPHABETICAL Rep Andrews, Robert E. - 3/6/2003 [NJ-1] Rep Beauprez, Bob - 3/6/2003 [CO-7] Rep Cole, Tom - 5/6/2003 [OK-4] Rep Cunningham, Randy (Duke) - 3/6/2003 [CA-50] Rep Faleomavaega, Eni F. H. - 5/7/2003 [AS] Rep Foley, Mark - 4/29/2003 [FL-16] Rep Goode, Virgil H., Jr. - 3/6/2003 [VA-5] Rep Grijalva, Raul M. - 3/6/2003 [AZ-7] Rep Hostettler, John N. - 3/6/2003 [IN-8] Rep Inslee, Jay - 4/30/2003 [WA-1] Rep LaHood, Ray - 3/6/2003 [IL-18] Rep Myrick, Sue - 3/6/2003 [NC-9] Rep Paul, Ron - 3/18/2003 [TX-14] Rep Platts, Todd Russell - 4/30/2003 [PA-19] Rep Rahall, Nick J., II - 4/29/2003 [WV-3] Rep Sandlin, Max - 3/6/2003 [TX-1] Rep Simpson, Michael K. - 1/20/2004 [ID-2] Rep Souder, Mark E. - 3/6/2003 [IN-3] Rep Stearns, Cliff - 9/9/2003 [FL-6] Rep Wamp, Zach - 5/22/2003 [TN-3] Rep Wilson, Heather - 4/29/2003 [NM-1]
I think more correctly, it proves that anyone who gets DIVORCED is an idiot...
In that case, I'll amend my statement to say anyone who puts themselves in a position to be divorced in Louisiana is an idiot.
It's important to remember that this Act brings DoD in line with the way other federal agencies must address this situation. Regardless of how you feel vis-a-vis the issue, at least it would be consistent.
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