Future Military Retirement Pay In Danger

GOPUSA ^ | December 13, 2001 | Heather Wayman

[gopusa.com]

In June 1981, the U.S. Supreme Court ruled in McCarty vs. McCarty that military retirement pay should not be divisible as community property. The Supreme Court Justices asserted and acknowledged that military retainer/retirement pay were different enough from federal and civilian retirement plans and therefore should not be treated the same in divorce situations. However, the Supreme Court did acknowledge that the need existed to help these former spouses and therefore left the door wide open for Congress to enact the Uniformed Services Former Spouse Protection Act (USFSPA). The USFSPA became law (Public Law 97-252) on September 8, 1982 and was made retroactive to June 21, 1981. The retroactive effective date served to nullify the Supreme Court's decision. The USFSPA was not applied just prospectively, therefore allowing tens of thousands of former spouses to return to court and reopen community property settlements many years after divorce.

The USFSPA may have had good intentions as it was originally enacted to keep former spouses from being desolate after a long-term marriage. Not all states had alimony laws in place at the time and this was designed as a protection, hence the name "Former Spouse Protection Act". At that time, many spouses did not work outside the home and were not formally educated to enable them to support themselves. However, times have changed drastically and women now make up a significant percentage of the workforce. Also, military bases are located near many institutions of higher learning therefore, enabling even military spouses to become educated. Retirement accounts are now portable allowing spouses to accrue retirement benefits and transfer them to another employer when necessary.

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