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"The democracy will cease to exist when you take away from those who are willing to work and give to those who would not." - Thomas Jefferson -
Special Note: Doris Mosely's ex-spouse receives 10% VA Disability, yet she still feels she should be able to have a portion of that as well as a portion of her ex-husbands retirement. You don't think she's a bit greedy do you?
OPINION LETTERS By Doris Mozely November 20, 2000 Air Force Times p. 61
I couldn't agree more with the headline over Robert Dorr's column, "Former spouse law unfairly takes money from retirees" {Oct. 9}. Yes, jointly earned pension money is "unfairly" taken from retirees because an ex-spouse almost never gets her fair share. Although I served as a military spouse the same length of time my former husband served as an officer, I am receiving about one-third of the pension we earned together. This is fairly typical. For example, before I can have my "disposable" share, I have to help him and his new wife pay their income taxes. If this type of discriminatory law affected a racial or religious group, there would be rioting in the streets. But for thrown-away military wives, anything goes. Yes, the military pension is unfairly divided thanks to the Former Spouses Protection Act, which prohibits a true division of the jointly earned pension. The services should advise military members that they will have to divide the only (most likely) asset of the military marriage if they decide to change spouses at midlife. There probably would be fewer divorces. But it is hard for me to believe service members don't know about the weak Former Spouses Protection Act that has been on the books for 18 years. As far as the act being unfair, that definition is in the eye of the beholder. Yes, to divorced military members who don't want to divide any partnership assets, allocating any part of their pension is unfair, but not to military wives who always come out on the short end. For example, according to AARP, which did a study on six retirement systems, "the military retirement system is the most inequitable for divorced women." Also, the American Bar Association has testified at least four times before Congress on the subject of military divorce, the most recent in August 1998. Marshal Willick noted that the bar association's 1979 and 1982 resolutions indicated all deferred compensation derived from federal employment should be subject to state property and divorce law. Who is more believable on this subject - the expert, impartial American Bar Association or disgruntled, selfish, biased military members who have a personal ax to grind? At the 1998 hearing, Willick testified that the prospect of retirement pay is an incentive for both husband and wife to endure the rigors of the military lifestyle with its frequent change-of-station moves, necessary limitations on development of a career for the spouse and other drawbacks. Willick noted that the quality of life that each party can reasonably expect to have after divorce is directly dependent on the certainty of receipt of his or her share of the asset. The lobbying organization the American Retirees Association, in its efforts to overturn the act as "antiquated, discriminatory and contradictory" has waged a campaign to recruit more "victims" - as they characterize all military members who have had to share pensions with an ex-wife. Over the years, ARA has been unable to do so, or even to raise its dues from $25 to $50. Even the dedicated 600 members, by and large, refuse to pay more for ARA services in its effort to overturn or eviscerate the Former Spouses Protection Act. I believe people dedicated to a cause are usually willing to spend more than $25 a year to promote it. Wake up, Congress! So the question arises: Why doesn't Congress do its duty to the military wife who serves and enact the following as recommended by AARP and the American Bar Association? A presumption to entitlement. A true pro rata share. Treating a military wife fairly at divorce will strengthen our country by strengthening the family and making it much more likely that a wife will encourage her husband to serve - not to mention that it is only just, right, fair and honorable. Doris M. Mosley Chairperson Committee for Equality and Justice For the Military Wife ****************************************************************************************
Bitter differences between military retirees and ex-spouses over the Uniformed Services Former Spouses Protection Act have resulted in a decade of political inertia. Thousands of retirees and ex-spouses view the law as grossly unfair, and are looking to Congress for relief. But the likelihood of meaningful change remains slim. Edward C. Schilling III, a retired Air Force colonel and lawyer in Aurora, Colo., is an expert on USFSPA. Each year, he advises on how to get the best deal when dividing pensions in divorce. He says that the act allows many military retirees to shield retired pay during divorce settlements by accepting VA disability compensation instead, often for injuries or illnesses unrelated to combat or military service. Legislation to reform USFSPA remains pending before Congress. Rep. Bob Stump (R-Ariz.), chairman of the House Veterans Affairs Committee, thinks the law treats military Retirees unfairly. He would end division of retired pay when an ex-spouse remarries and would stop "windfall" payments to ex-spouses resulting from promotions or longevity raises earned after the divorce. Ex-spouses also would have only two years to seek a share of retired pay following the divorce. Schilling thinks Stump and many retirees are mistaken to believe the USFSPA is unfair. "Each state makes its decision on how pensions will be divided. The same rules apply to everybody, regardless where they work," he says In March, Stump asked Defense Secretary William S. Cohen when Congress could expect to see a report on a study of the existing law, which was due last October. Six weeks later, a DoD response said the services were still reviewing a draft. In July, a DoD official said he is "tired of guessing" when a report will be ready. "Every time I give somebody a date...I fail abjectly, so I don't guess anymore."
Additional references and legal facts which will enlighten you as to why military retired/retainer pay is not nor has it ever been a community property asset.
1. October 6, 1945 (H.R. 3951) Public Law 190. Armed Forces Voluntary Recruitment Act of 1945. Purpose of Law -- To stimulate volunteer enlistments in the Regular Military and Naval Establishments of the United States. Sec 4. of this law states, Whenever any enlisted man of the regulator Army shall have completed not less than twenty or more than twenty- nine years of active services, he may upon his own request , be transferred and retired shall receive, except with respect to periods of active duty he may be required to performed, until his death, annual pay. There is like status for officer personnel. Note: This law clearly states that the military member is in a reserve status. That the military member will remain so until death. Thus the reason for retainer pay---Not Pension. It should also be noted that no such laws exist for the spouse. Question; If a military retired member is recalled to active duty, will the court awarded property asset, that was awarded to the former spouse be stop? Or will the military member be required to pay the former spouse from the active duty pay? If the payment is stopped, will the military member be held in contempt of court?
2.The I.R.S. Code 26 C.F.R. S 31. 3401 (a)-1(b) (1) (ii) states that military retired pay is a Current Wage. Question: How then can a state court classify military retired/retainer pay as a deferred income? Current wages are not a property asset, therefore courts seem to have changed the classification of military retired/retainer pay in order for the pay to appear as a property asset. Note: State Courts do not require Former Spouses to pay taxes each month on the retired/retainer pay that they receive as a community property asset. Therefore the military member is being forced to pay federal taxes on income he never receives. The IRS has noted this problem and they have forced the Military Finance centers to send the former spouses a tax statement. That took 20 years to get this accomplished? What about the past 20 years, or is that just another freebie for the former spouse?
3. The United States Supreme Court decision-- McCarty vs McCarty 1981. There is a conflict between the terms of the federal military retirement statues and the community property right asserted by the appellee. The military retirement system confers no entitlement to retirement pay upon the retired members spouse, and does not embody even a limited community property concept. Note: Some State Courts, with out Federal authority , were in fact taking military retired/retainer pay as a property years before the enactment of the Former Spouse Protection Act (P.L.97-252) in 1982. Thus the reason for the United States Supreme Court ruling on McCarty. Congress wrote Public Law 97-252 to over ruled the United States Supreme Court. Question: Did the Former Spouse Protection Act change any of the federal laws and/or military regulations which govern the military members required obligation in ordered to receive military retired/retainer pay? The answer to this question is no! The Former Spouse Act has allowed state courts to transfer military funds that are authorized and appropriated for National Defense purposes to social, non- defense purposes for which there is no established earned or contractual basis with the United States Government. I believe one could call this Fraud ! No other occupation in the United States is required by Federal Law , except the military, to have retainer wages classified as a property asset to a former spouse for life, why?
4. United States vs Tyler, 105 U.S. 244 (1882). The Tyler court characterized such pay as Compensation..which continued at a reduced rate. So where did the words deferred income and pension come from? I can only assume that it was and assumption made my some state attorney. The wording pension can not be found in federal law, which govern military retired pay.
5. Reference 26 USC 31.3402, Retired military personnel are considered employees or members of the service they retired from . 26 U.S.C 31.3401 (a)-1 (b) (1) (ii) provides that retired Pay constitutes wages and as such is therefore subject to withholding and reporting as are other wages. While 26 U.S.C. 3405 (a) (2) governs pensions and annuities. Retired military pay is neither a pension or an annuity under current I.R.S. regulations. Question: Military members are the only class of U.S. citizens which are required State Courts to pay retainer wages, as a property asset, to a former spouse for life , why ? It should also be noted that many of the former spouse have remarried. Note: The property asset award doesn1t stop upon the remarriage of the former spouse, as due other remarriages, why?
6. The Department of the Air Force Accounting and Finance Center, on May 19, 1986 notified a military retired Air Force Officer that he owned the Federal Government $3,161.63. The letter stated that he was subject to the Dual Compensation Law , codified in title 5, United States Code (U.S.C.) section 5532. This retired military officer was required by federal law to pay back $3,161.63 of his military retired pay for teaching math to Navajo Indians. The job was considered federal employment, since his contract was with the Bureau of Indian Affairs, Dept. of the Interior. Question: Would a former spouse who receives military retired/retainer pay as a community property asset be required to return funds for teaching Navajo Indians math? This is just another example of discrimination. Reference Lt. Col. Oliver North who lost his Military retired/retainer pay for being convicted of a crime . It took and act of Congress to restore his retired pay. If congress had not acted, then are we to assume that Col. North wife would have also lost her property rights to his pay?
7. Air Force Times Dated Sept 1, 1986. Retired Pay Halted during Saudi work. Maj. Stephen H. Hartnett (USMC Ret ), who accepted a job in May , 1985, with a Delaware- Base firm of Frank E. Basil Inc,. had his military retired pay stopped. The U.S. Comptroller General ruled he was under the supervision and control of the Saudi Government. Long standing legal rulings have placed retired military personnel in this category, since they are subject to recall to active duty. Question: Will a former spouse of a military member lose their property rights to the military retired pay if they were to become employed by a foreign government?
8. Air Force Times dated March 5, 1984, Retiree Renouncing Citizenship. SFC Charles J. O1 Fearna retired from the Army in 1965, after 22 years of military service. He moved to Australia in 1966 and has lived there ever since. In April , 1981, O1 Fearna become a naturalized citizen of Australia, apparently without realizing what input it would have on his military retired pay. The Comp. Gen. held in previous decisions that military retirees lose their right to retired pay when they lose their citizenship. The Comp. Gen. stated all members on the retired list of the regular Army remain a part of that force and relied upon as a dependable source of manpower. The finance center told O1 Fearna that his retired pay ended when he forfeited his citizenship. They stopped his retired pay immediately and advised him to refund retired pay he received since April, 1988. Question: Does a former spouse lose their so call property asset rights if they loose American Citizenship? Millions of dollars of military retired/retainer pay is being paid to Foreign National who divorce military members. Many have returned to their Home Countries.
9. Air Force Times July 11, 1983, System is not old age pension, by Caspar Weinberger, Secretary of Defense. These dedicated professionals routinely work long and irregular hours with no overtime pay. They face exposure to risk, an inability to control living or working conditions, forced family separation, and periodic relocations. At the same time, they are obliged to accept a highly disciplined and controlled life, unlike any other sector of the American population. Military members serve in a system that provides no vesting in the retirement system, and in fact, only 12% of those who enter active service ever reach retirement eligibility. The other 88% receive no retired pay at all. Question: Does the hardships of military life being on divorce ? If so, then who created this hardship? Has no fault state courts taken these hardships into account when they awarded 50 % of a military members retired/retainer pay as a property asset for life to the former spouse? Note: The spouse of a military member could leave the military member to all the hardships of military life and collect half the military retired/retainer pay as a property asset for life, regardless if the former spouse were to remarry six times!
10.Sergeants magazine, December 1985, Pennsylvania retiree fights state law. Military retirees in Pennsylvania are fighting a state law enacted in 1980. When military retirees are laid off from civilian jobs, the law reduces unemployment compensation by the amount of military pension received. Question: since when did a military retiree receiver a Pension? Will a former spouse have their awarded military retainer pay reduced by the amount of unemployment compensation they receive? Is this a clear case of discrimination being ignore by the politicians ?
11.Costello vs. United States, Constitutional law 278.6 (1), Military retirement pay is not deferred compensation for past services but , like active duty pay, is pay for continuing military service and as such, can be prospectively altered without offending due process. U.S. C. A. Cont . Amend. 5.2 Question: Does this constitutional ruling still apply to military retired pay? If not, then why not?
12. Lemly vs. United States (1948 )... Retirement pay is a continuation of active pay on a reduced basis. Even though an officer is retired from active duty and is receiving retirement pay, he is still subject to call to active duty as long as his physical condition will permit. He is still an officer in the services of his country even though on the retired list. Question: Is this still true? If it is, then has not the military occupation become the only occupation which pay a retainer pay as a community property asset ?
13.Washington State law , R.C.W. 26.16.140 states, When a husband and wife are living separate and apart, any money they make is the separate property of each, that it is not community property. Question: If military retired pay is in fact earned daily, paid monthly, and is not based on a deferred income, nor is it pay for past services rendered, then how can it be considered a property asset in Washington State? Question: How could a state Judge take military retired/retainer pay as a property asset prior to the Former Spouse Act, (P.L.97-252)?
14. Washington State law, R. C. W. 6.16.030 written in 1890, states, Pension money received from the United States Government is exempt from execution, attachment or seizure by or under any legal process whatever. Question: If military retired pay is being classified as a pension, then under what law are they using to take the pay in Washington State? I can only assume it's case law ! But wait, doesn't legislative law over rule case law ?
15. Under Social Security and Railroad retirement, there is a statutory benefit for divorced spouses who have been married to the employee for at least 10 years. Payment of this benefit does not reduced the retries benefit. Retiree retains full retired pay. Includes remarriage clause, terminating retired pay upon remarriage. Question: Why was the remarriage clause left out of the Former Spouse Act? Again, the military member seems to have been discriminated against, why?
16. Reference the National Association of Retired Federal Employees (NARFE) contended that a 3.1 percent COLA become a vested entitlement on December 1, 1985, and therefore, its cancellation by the Gramm-Rudman-Hollings ( The Balanced Budget and Emergency Deficit Control Act of 1985 ) on December 12, 1985, made it illegal. A federal three - judge panel ruled that retirees have no property rights to benefits not yet paid. This was , essentially , upheld by the U.S. Supreme Court by its refusal to hear the appeal. Question: Since military retirees have no property rights to military retired pay, then why does a former spouse gain a property asset right ?
17. The U.S. Supreme Court in the Buchanan v. Alexander, 45 U.S.20 (1846), Ruled that money owed by the United States to the individual service member be longs to the Treasure until it is paid to that individual. Essentially, the Supreme Court held that courts cannot tell a federal disbursing official what to do since it would defeat the purpose for which congress appropriated the money. If the specific reason Congress appropriated funds for the retired military member after 20 years of active duty is not as compensation for continuing military obligations, what, then, is it reason ? What law provides other reasons? The Former Spouse Act provides that a former spouse may receive military retirement pay directly from a military finance center, without sending the money to the military member first. Question: Doesn't this circumvent this ruling made by the United States Supreme Court ? In Summary: If Congress intended to characterize military retired pay as property, and then allow the states to take it from the military service member and give it to the member1s former spouse, without just compensation, then congress has violated the due process clauses of the United States Constitution. Some have concluded that Congress, enacted the Former Spouse Act to recognize the contributions and sacrifices of the military spouse. Those contributions and sacrifices have helped create and maintain an effective military force. Therefore, the Former Spouse Act , by allowing military retired pay to be paid the former spouse, benefits the military and constitutes a public use. Then should not the Government pay the former spouse for the services that they rendered? It's time that the hearings on Public Law 97-252 (Former Spouse Protection Act ) begin. Who in their right mind would spend 20 and or more years in the military, only to have their retired pay reduced by 50%. A new violation of the military members civil and constitutional rights occur each month when the involuntary diversion of funds is enforced by the federal government. Without the required legal intervention our military members will remain in perpetual servitude to a former spouse and their present spouses until they die.
Byline: Doris Mozley Publication: AIR FORCE TIMES
MILITARY DIVORCES SHOULD BE FAIR, TOO I disagree with Col. Terry D. Steven's assertion that the Former Spouse Protection Act "is a good law gone bad" [Back Talk, Jan. 3]. On the contrary, it is a weak law that needs strengthening. Even though it gives minimal protection to long-serving military spouses, military members fought FSPA's passage in 1982 and have been working these past 18 years to overturn it. They prefer outright repeal, but barring that, they wish to weaken it as much as possible with crippling amendments such as those preferred by Rep. Bob Stump in HR 72. FSPA allows military retired pay to be treated in a state domestic relations court in the same manner that a state treats all other pensions. All states consider pensions marital property that belong equally to husband and wife. Of course, that also is true of all other property earned during the marriage. No longer can husbands title everything amassed by the couple during a marriage in their own names and walk away with it at divorce time. I wonder why this principle of economic equality at divorce time is so difficult for military members to accept? These members posit that because they wear a uniform, they should receive preferential treatment in a divorce court. In fact, the rule of law that applies to all husbands now applies to military members, and they don't like it. They never did, despite what Stevens alleges. Stevens also objects to VA disability pay being awarded for alimony and child support. To begin with, most "disability" pay is not combat-related; it is for the ravages to the body that come with the aging process. Disability pay is nothing more than a tax break. The member doesn't receive more money; he just has tax on his disability pay forgiven, thereby making it legally off limits to both the IRS and an ex-wife. If Congress wants to reward members for disability, let them do it in an honorable, above-board way. It is wrong for an ex-military wife -- statistically among the poorest people in the country -- to be saddled with the tab for her husband's disability. Stevens also advocates freezing a spouse's share of the pension as of the date of divorce. He claims that not doing so gives ex-wives "windfall" benefits that they do not deserve. But, the impartial American Bar Association has advised Congress on three different occasions against this unfair method of determining equity in pension-sharing. Stevens also recommends limiting the time that a wife has to seek her property share of the jointly earned military pension. Obviously, Stevens does not know that property is never lost, only "overlooked" at divorce time. I advise Congress to amend the Former Spouses Protection Act by predicating all military benefits on public service. Those who serve, receive, those who don't, do not receive. Stevens and the American Retirees Association should accept that great principle of law and recognize that their wives are equal partners in a marriage, even a military one. Doris Mozley, from Richmond, Va., is chair of the Committee for Justice and Equality for the Military Wife.
You can Contact Doris at: Doris Mosley, Prestwould Apt, Richmond, VA 23219 Home Phone: 804-644-2776