Columnist Sandra Thompson: Congress considers curbs on ex-spouses’ benefits

Sandra Thompson

Saturday, Aug. 1, 1998 | 5:12 a.m.

THE House Veterans Affairs Committee will reopen old wounds this week as it considers changes in policies on military retirement benefits for ex-spouses.

It has been an emotional, controversial issue in Nevada, which has a sizeable military and retired military population. Las Vegas attorney Marshal Willick, who says he has handled thousands of military divorces, has been a key player in the fight for the rights of ex-spouses to collect what he says is due them.

Willick, who has just completed a book on military benefits for ex-spouses, will testify before the Veterans Affairs Committee Wednesday morning in Washington, D.C. He will represent the American Bar Association, which opposes the benefit changes.

It's not an unfamiliar role for Willick. In 1990, he testified on behalf of the ABA before another House subcommittee on the Uniformed Services Former Spouses Protection Act.

The Veterans Affairs Committee is considering the following policy changes:

* Payment of benefits to an ex-wife should end when she remarries.

The ABA believes retirement pay should be considered part of community property, just as a house, car and pension benefits are in civilian divorces. Under the proposed change, the benefit would be treated as alimony and not an asset that accrued during the marriage.

* An ex-wife would be entitled to a share of the military benefit amount at the time of the divorce, not what the benefit would be at the time of retirement.

That would only lower the amount the ex-spouse is entitled to, Willick says. Example: Benefits are based on rank and years of service. Joe is a captain when he divorces his wife of 10 years. He later becomes a general and retires. His ex-wife is entitled to a share of Joe's benefits as a general, Willick says, because she was there during "the building block days. He couldn't have gotten on that path without (her)."

* If an ex-spouse does not know she's entitled to benefits at the time of divorce, she can never come back to claim a share of them.

Willick says this amounts to Congress telling states what their statute of limitations should be. Also, if an injustice was created in a divorce settlement, the court would never have an opportunity to fix it.

* Military disability payments should be excluded from the benefits that may be garnisheed for payment of child support and alimony.

"To get $1 of disability payments, you give up $1 of retirement benefits," Willick says. So an ex-spouse could get around payment of child support and alimony by converting his retirement benefits to disability pay.

Willick says many women who helped their ex-husbands throughout their military careers find themselves in dire financial straits after divorce. Many didn't work during the marriage because they raised the children, kept the home and assisted in their spouses' climb up the military ladder. Some ex-spouses point out that because their behavior "directly affected the advancement of their husbands' careers," they are entitled to a share of retirement pay.

Military retirees say they are the ones who signed a contract with the United States government and they were the ones on the firing line -- literally. So they should keep all their retirement pay.

Before 1981, states differed considerably in their treatment of military retirement benefits in divorce cases. Several considered them only as a basis for alimony; a few didn't count them at all when dividing the marital property.

In 1981, the U.S. Supreme Court ruled that states could not divide military benefits in a divorce because of a federal law.

However, Willick says, the court realized the dire plight of some ex-spouses, so it tossed the issue back to Congress, suggesting that Congress may want to change the law.

Two years later, Congress did change the law by enacting the Uniformed Services Former Spouses Protection Act. That put military retirement benefits on a par with other federal, state and private retirement and pension plans, as a property asset to be divided between the spouses to the degree it was earned during the marriage.

Reacting to the federal law, the Nevada Legislature in 1987 passed a law allowing ex-spouses to sue for their share of retirement pay even if it had not been part of the original divorce property settlement.

That raised such a ruckus among military retirees who were faced with paying large sums to their ex-spouses that the Legislature repealed the law two years later.

Sometimes retirement benefits are the single-most valuable asset accrued during a marriage that spans many years.

It's only fair that women who helped their husbands (or men who helped their wives) throughout their military careers share the retirement benefits.