Uniformed Services Former Spouses' Protection Act: Is There Too Much
Protection for the Former Spouse?

[Captain Kristine D. Kuenzli]{.smallcaps}[^1]

The Uniformed Services Former Spouses' Protection Act[^2] (USFSPA) and
its amendments provide a number of benefits for former spouses of
military members. The USFSPA was enacted, partly, to recognize the
important role the military spouse plays in the military family.[^3]
Although the Air Force legal assistance charter does not allow Air Force
attorneys to represent members or their spouses in actual divorce
proceedings,[^4] a working knowledge of the benefits available is
necessary in order to provide adequate legal guidance before the matter
goes to court.[^5] Many members and spouses do not become aware of the
benefits available to them upon the dissolution of their marriage until
they are in the middle of divorce proceedings.[^6] Furthermore, the
numerous provisions of the USFSPA and the time requirements for direct
payments to former spouses confuse many military members.[^7]

Although the USFSPA was initially enacted in 1982 to rectify what
Congress considered an inequity propounded by the Supreme Court's
decision in *McCarty v. McCarty,*[^8] Congress has frequently amended
the USFSPA to provide further protections for the former spouse. In
addition, state courts have interpreted various provisions of the USFSPA
in such a way as to protect the former spouse's interests. Whether the
time has now come for Congress to afford further protection for the
military retiree is up for debate. In fact, Congress is currently
considering legislation that would attempt to amend the USFSPA to
protect retirees' interests in their retirement pay. This article will
discuss the history of the USFSPA; its current provisions; the
relationship between the USFSPA, disability benefits, the Survivor
Benefit Plan, the Dual Compensation Act, and pay incentives; the special
provisions for domestic abuse cases; and finally, the proposed
legislation affecting the USFSPA.[^9]

####### I. History

**A. Marital Property Law**

An understanding of the impact of *McCarty v. McCarty*[^10] and the
USFSPA requires a basic understanding of marital property law. The
United States contains eight community property states and forty-two
common-law states.[^11] Both of these systems classify property acquired
during marriage differently, and therefore, have a great impact on the
distribution of assets at divorce.

The eight community property states use the Spanish system of marital
property known as the ganancial system.[^12] In the ganancial system,
all property owned by each spouse prior to marriage or acquired by each
spouse separately by gift during marriage is classified as separate
property, and all other property acquired during marriage is community
property.[^13] Under this system, each member contributes to the
community of marriage by "equally contributing by his or her industry to
its prosperity, and possessing an equal right to succeed to the property
after its dissolution."[^14] As a result, all income earned during
marriage by both members is classified as community property.
Furthermore, retirement benefits, considered deferred income, are also
considered community property in this system.[^15] As such, military
retirement benefits, even unvested benefits,[^16] are community property
assets subject to distribution upon divorce.[^17]

Common-law states[^18] use an English-derived system of distribution of
marital assets.[^19] These jurisdictions consider all property owned
before marriage, as well as all property acquired during marriage by
gift, inheritance, or personal earning, to be owned by each member.[^20]
Retirement benefits, whether vested or unvested, are owned by the
earning member.[^21] Historically, upon divorce, this system of
distribution resulted in inequities for the wife who had no earnings and
little property. To counteract these inequities, most common-law states
grant alimony in divorces that have unequal marital assets.[^22] In
addition, most common-law states divide property equally upon divorce,
either by judicial or statutory mandate.[^23] However, the property
subject to division is limited in most states.[^24] Retirement benefits
can be distributed in these jurisdictions, depending largely upon
whether they are vested or unvested.[^25]

**B. The Court's Decision in *McCarty v. McCarty***

In *McCarty v. McCarty*,[^26] the Supreme Court found for the sixth
time[^27] that certain state community property laws are preempted by
federal law. The issue in *McCarty* was whether California courts were
preempted by federal statutes from dividing nondisability retirement
benefits upon divorce.[^28] Colonel Richard John McCarty and his wife,
Patricia, were married in 1957.[^29] Colonel McCarty was an Army medical
officer who entered the service in 1959.[^30] Colonel and Mrs. McCarty
separated and filed for divorce in 1976.[^31] In the divorce
proceedings, the superior court ruled that Colonel McCarty's military
retired pay was distributable as quasi-community property.[^32] Colonel
McCarty unsuccessfully appealed this decision and ultimately petitioned
the United States Supreme Court for certiorari. The Supreme Court
granted certiorari in 1981.

Colonel McCarty raised two arguments in his appeal. First, he argued
that military retired pay was not subject to division as marital
property because it was not the same as civilian "retired pay."[^33] To
support this argument, Colonel McCarty cited federal cases to establish
that military retired pay actually is reduced current pay for continued
service in the armed forces at a reduced level.[^34] Under this theory
military retirement benefits, unlike civilian retirement, are not
considered assets earned during employment with payment deferred until
retirement. Rather, by remaining on the retired list, military retirees
continue to serve in a reduced capacity subject to recall.[^35]
Consequently, their military retired pay is a monthly payment in return
for their reduced service.[^36] The Court did not, however, adopt this
theory. Instead, the Court focused on Colonel McCarty's second
argument.[^37]

Colonel McCarty's second argument rested on the concept of preemption.
Colonel McCarty argued that a conflict existed between the terms of the
federal retirement statutes and the community property right asserted by
his former spouse.[^38] He argued further that the consequences of that
community property right sufficiently injured the objectives of the
federal program, such that the court should not recognize the community
property right.[^39] He asserted that military retirement benefits
constituted an important part of Congress's goal of meeting the
personnel management needs of the active military forces.[^40] Together
with other benefits and personnel management policies, the military
retirement system was designed to serve as an inducement for enlistment
and reenlistment, to create an orderly career path, and to ensure a
"youthful and vigorous" military force.[^41] Colonel McCarty's position,
therefore, was that allowing state courts to divide retired pay would
frustrate Congress's goals in these areas.[^42] The Court agreed.

The Court found that distributing military retired pay as community
property brought state courts into direct conflict with the intent of
the federal military retirement plan and "threaten\[ed\] grave harm to
'clear and substantial' federal interests."[^43] The Court applied a
two-step analysis to the preemption issue, following its analysis in
*Hisquierdo v. Hisquierdo*.[^44] First, the Court determined that
Congress intended to grant retired service members a "personal
entitlement" to the benefits. [^45] Pursuant to this analysis, the Court
concluded that dividing this entitlement in conformity with state
community property provisions conflicted with federal military
retirement statutes.[^46] Second, the Court considered whether the
"application of community property principles to military retired pay
threatened grave harm to 'clear and substantial' federal
interests."[^47] The Court found that Congress intended to provide for
retired service members and that dividing retirement benefits upon
divorce would frustrate this congressional intent and disrupt military
personnel management.[^48] Justice Blackmun, writing for the majority,
noted, "We very recently have re-emphasized that in no area has the
Court accorded Congress more deference than in the conduct and control
of military affairs."[^49] He did suggest, however, that "Congress may
very well decide, as it has in the Civil Service and Foreign Service
contexts, that more protection should be afforded a former spouse of a
retired service member. This decision, however, is for Congress
alone."[^50] Concluding that this case satisfied both steps of the
preemption test, the Court held that military members' retirement
benefits were not subject to division upon divorce as community property
assets.[^51]

The Court's decision in *McCarty* drew strong criticism from the
American Bar Association,[^52] as well as from legal[^53] and
journalistic[^54] commentators. Criticism of the *McCarty* decision
focused primarily on the Court's extension and application of the
federal preemption test.[^55] In addition, critics focused on the
inequitable treatment afforded to military spouses versus nonmilitary
spouses.[^56] Although the majority of the *McCarty* court recognized
that it had damaged the interests of military spouses, it suggested that
the problem was better resolved by legislation.[^57]

**C. The Uniformed Services Former Spouses Protection Act**

Less than five months after the Court ruled in *McCarty*, Senator Roger
Jepsen of Iowa introduced the Uniformed Services Former Spouses
Protection Act.[^58] Before the Senate Manpower and Personnel
Subcommittee, Committee on Armed Forces, Senator Jepsen testified that
his bill was a direct response to the Supreme Court decision in
*McCarty*.[^59] Acting with alarming speed, less than fifteen months
after the *McCarty* decision, Congress passed the USFSPA.[^60]

The USFSPA effectively voided the *McCarty* decision, restoring state
marital property law and substantially revising the federal system for
directing military disposable retired and retainer pay.[^61] Senator
Jepsen's act became law on February 1, 1983, applied retroactively to
the date of the *McCarty* decision.[^62] Although Congress intended,
through the passage of the USFSPA, to negate the effect of
*McCarty*,[^63] the USFSPA did not require the reversal of state court
final judgments. Instead, the USFSPA allows state courts to reconsider
judgments in light of their marital property and procedural laws,
disregarding the decision in *McCarty.*[^64]

Criticism of any legislative reversal of *McCarty* began early in the
legislative discussions on the USFSPA. Primarily, this criticism came
from groups representing retired military personnel. These groups
supported the Court's ruling in *McCarty*, insisting that retirement pay
was earned and, therefore, belonged to the service member.[^65] Of
course, the primary reason retired military personnel have so vigorously
criticized the USFSPA is their emotional and financial attachment to
their military retirement pay.[^66] In addition, in many divorces, the
military retirement pay is the most significant marital asset.[^67]
Despite the criticism by retirees, Army, Navy, Air Force, and Marine
Corps representatives testified "in support of an equitable solution to
the problems created by the *McCarty* decision." [^68] Yet, they did not
go so far as to advocate legislative codification of the *McCarty*
decision. These representatives testified, instead, that a legislative
reversal of *McCarty* would have an adverse effect on recruiting and
retention and create military personnel assignment problems.[^69]

Lieutenant General Andrew P. Iosue, Deputy Chief of Staff for Manpower
and Personnel of the Air Force, testified before the Senate that "state
court records are filled with numerous examples that highlight the
impracticability of allowing state courts total discretion in retired
pay property divisions."[^70] Lieutenant General Iosue cited several
cases upon which he based his concerns.[^71] One California decision
referenced by Lieutenant General Iosue made it possible for the former
spouse to determine when his or her share of the retired pay should
begin regardless of whether or not the member is retired.[^72] He cited
another California decision that required a military member who refused
to retire and begin receiving retired pay, to provide the former spouse
an amount equal to what she would have received as her property had he
retired.[^73] Lieutenant General Iosue also referred to an Idaho case in
which the court first consulted actuarial tables to determine what the
gross amount of the former spouse's annuity would be if the retiree
lived a normal life expectancy and then included this figure as a lump
sum distribution.[^74] Finally, he cited a Montana case where the court
stated that in the event the wife predeceased her husband, his military
retired pay should pass to her estate.[^75] Lieutenant General Iosue
emphasized that while this was only a small sample of the cases dealing
with military retired pay, they demonstrated perfectly the consequences
of allowing state courts unconstrained authority to divide military
retirement pay.

Department of Defense officials who also testified before Congress
asserted that there was a need to protect against the possibility of
forum shopping by spouses or members.[^76] In this context, forum
shopping meant a search for a state with the "most advantageous law and
procedures in which to commence a divorce proceeding."[^77] These
officials expressed concern that forum shopping would allow a state with
which a spouse or member had little contact to exercise jurisdiction.
Opposition to this position was powerful. Witnesses testifying on behalf
of the American Bar Association Family Law Section pointed out that the
Soldiers' and Sailors' Civil Relief Act[^78] already afforded some
procedural protections against forum shopping.[^79] Further, the Senate
itself emphasized that state conflict of law rules protected against
such forum shopping abuse.[^80]

As it made clear in its report, the Senate intended to give state courts
with jurisdiction over domestic relations great latitude in dealing with
retired pay.[^81] The Senate, however, concluded, "it is imperative that
the control of uniformed service personnel remain with the federal
government."[^82] Consequently, Congress did not completely reverse the
*McCarty* decision. Instead, Congress placed a number of limitations on
state court's authority to distribute retirement pay. Despite these
limitations, discussed in the next section, the USFSPA provided a
powerful tool for former spouses in obtaining a portion of the military
member's retired pay.

**II. CONGRESSIONAL LIMITATIONS ON STATE COURT AUTHORITY**

Congress's intent, to reverse the effect of the *McCarty* decision by
enacting the USFSPA, was largely fulfilled.[^83] However, in an effort
to strike a balance between the federal government's control over the
benefits extended to military members and the call to provide a remedy
to former spouses, Congress placed a number of limitations on the
ability of state courts to divide retired pay. State court authority was
limited in that they could deal only with disposable retired pay;[^84] a
spouse's right to retirement pay could not be transferred;[^85] courts
would have no equitable power to order members to apply for retirement
or to retire;[^86] and courts could not attempt to avoid the *McCarty*
holding unless they had jurisdiction over the member apart from any
military assignment.[^87]

######### A. Division of Disposable Retired Pay {#a.-division-of-disposable-retired-pay .unnumbered}

One limitation Congress placed on state court authority is that the
USFSPA does not empower state courts to divide the gross retired pay of
the service member.[^88] Instead, the USFSPA only gives state courts the
authority to distribute disposable retired pay according to state
law.[^89] This provision is, in fact, the cornerstone of the USFSPA and
it provides that:

> Subject to the limitations of this section, a court may treat
> disposable retired pay payable to a member for pay periods beginning
> after June 25, 1981, either as property solely of the member or as
> property of the member and his spouse in accordance with the law of
> the jurisdiction of such court.[^90]

Central to the operation of the USFSPA are the definitions of
*disposable retired* or *retainer pay* and *spouse*. Subsection
1408(a)(6) defines a spouse or former spouse as "the husband or wife, or
former husband or wife, respectively, of a member who, on or before the
date of a court order, was married to that member."[^91] Subsection
1408(a)(4) defines disposable retired pay or retainer pay as total
monthly income less certain debts owed to the government, forfeitures
because of a court-martial, and any amount waived to receive disability
pay or to provide an annuity.[^92] Under this definition the amount
withheld for federal, state, and local income taxes is considered part
of disposable retired pay.

However, this broad, inclusive definition of disposable retired pay was
not part of the original legislation, but was instead a product of
Congress's decision to change the definition to address a conflict
between the state courts and the Supreme Court. As originally
calculated, disposable retired pay included gross nondisability retired
pay minus certain deductions, such as federal, state, and local income
tax withholdings; federal employment taxes; life insurance; survivor
benefit plan premiums in some cases; statutory offsets required by the
retiree\'s receipt of federal civil service employment benefits; and
statutory offsets required by the retiree\'s receipt of disability
benefits from the Department of Veterans' Affairs.[^93] Under the
original provision in the USFSPA, state courts were permitted to treat a
military member's *disposable retired pay* as property solely of the
member or as property of the member and his spouse in accordance with
state law.[^94] However, problems arose when courts attempted to
reconcile the adjusted amount contemplated by the USFSPA with the gross
retired pay usually required by state statutes. In many instances, as a
result of the tax break to the member, the former spouse received less
than what state statutes seemed to require.[^95] As a result, the
majority of states ignored this definition and held that they had the
authority to award a share of gross retired pay to the former
spouse.[^96] The Supreme Court responded to this application of the
USFSPA's definitions in *Mansell v. Mansell.*[^97] Although the
*Mansell* case dealt with a different aspect of the division of military
retirement pay,[^98] the Court had to determine whether to strictly
interpret the term disposable retired pay.[^99] Striking down the
approach taken by a majority of state courts, the Supreme Court held
that Congress only empowered state courts to divide, not define,
disposable retired pay. [^100] In so doing, the Court effectively
overruled state court decisions to ignore the definition in the USFSPA
and award a share of gross retired pay to the former spouse. Congress
responded to this conflict between the state courts and the Supreme
Court's holding in *Mansell*, by enacting an amendment to the USFSPA.
[^101] This amendment recalculated disposable retired pay to eliminate
tax withholdings from the definition.[^102] Thereafter, state courts
were no longer required to deduct the amount withheld for tax purposes
when calculating the amount to be divided between the member and the
former spouse. By allowing state courts to begin with a larger amount to
be divided, Congress reinforced the state court's desire to provide
former spouses with more monetary benefits.

In a related effort to provide further monetary benefits to the former
spouse, courts have also interpreted the USFSPA to allow the courts to
treat military disposable retired pay as income for family support
purposes, specifically, alimony or child support.[^103] Since the USFSPA
allows states to treat military retirement pay as they do civilian
retirement pay,[^104] military retirement pay can be subject to division
between the spouses as property *and* as income in determining any
support obligation. Classifying military retirement pay as both property
and income was discussed in two fairly recent state divorce cases.[^105]
In both cases, a percentage of the military retirement pay was awarded
to the former spouse as marital property.[^106] In addition, the courts
classified the portion of the military retirement pay received by the
retiree as income for purposes of determining the child support
obligation of the retiree.[^107] Therefore, these courts classified the
military retirement pay as both marital property subject to division and
as income to the retiree for determination of child support payments. In
effect, the same military retirement pay is used to satisfy two separate
obligations in the divorce proceeding.

######### B. Transferability of Retired Pay {#b.-transferability-of-retired-pay .unnumbered}

An additional restriction Congress placed upon the division of retired
pay concerned the transferability of retired pay. During the divorce
process, property is generally classified as marital or nonmarital
property or as community or separate property. At the conclusion of the
divorce proceeding, each party is then left with their own separate
property with all of the attributes of sole ownership. However, the
USFSPA places limits on the ability of the former spouse to exercise all
rights of ownership.[^108] Section 1408(c)(2) provides that "this
section does not create any right, title, or interest which can be sold,
assigned, transferred, or otherwise disposed of (including by
inheritance) by a spouse or former spouse."[^109] The legislative
history provides an insight into congressional intent for this section.

> It is recognized that this limitation is contrary to certain concepts
> of property laws, especially the concepts of community property laws.
> That is, it is recognized that when a division of property is made
> pursuant to a divorce proceeding in a state having community property
> laws, each spouse usually becomes the sole owner of his or her portion
> of the community property so that the spouse can sell, assign,
> transfer, or otherwise dispose of that property without limitation.
> The spouse or former spouse should have no greater interest in the
> retired or retainer pay of a member than the member has. And a member
> has no right to transfer his retired or retainer pay on death. Nor can
> the member sell, assign, transfer, or otherwise dispose of the
> member's right to receive retired pay.[^110]

Section 1408(c)(2) recognizes that military retirement payments are not
like regular property divided during divorce proceedings. A member of
the military cannot transfer retired pay on death or sell, assign,
transfer, or otherwise dispose of retired pay.[^111] For that very
reason, section 1408(c)(2) provides,

> that a spouse or former spouse does not have any transferable right,
> title or interest in the member's retired or retainer pay. However,
> there is no limit on a spouse's or former spouse's right to deal with
> a portion of a member's retired or retainer pay after the spouse or
> former spouse receives that pay.[^112]

Thus, the former spouse, like the military member, is precluded from
transferring any award of retired pay.

######### C. Forced Application for Retirement {#c.-forced-application-for-retirement .unnumbered}

Another major limitation Congress placed upon the division of retired
pay is in the state court's power to force members to apply for
retirement or to retire. Since members of the armed forces often remain
in service after they become eligible for retirement, the receipt of
retirement pay, distributable in a divorce proceeding, is often
postponed. The decision to defer retirement affects the former spouses
in two ways: it increases the amount of retired pay, and it delays
receipt of the retired pay. The courts that have examined deferred
receipt of retired pay have generally found the spouse to be
disadvantaged unfairly by the delay.[^113] With respect to military
retirement benefits, the former spouse usually maximizes lifetime
retired pay income if the member retires immediately upon
eligibility.[^114] In order to prevent courts from forcing members into
retirement in order to distribute retirement pay, Congress included
section 1408(c)(3), which provides that "this section does not authorize
any court to order a member to apply for retirement or retire at a
particular time in order to effectuate any payment under this
section."[^115]

Although the USFSPA prevents courts from forcing members into
retirement, it does not address when distribution from retired pay can
or should begin. California courts have contemplated whether a member
should be entitled to unilaterally make the decision to retire, which
has such severe consequences for the former spouse.[^116] These courts
allow the former spouse to decide whether to receive payment when the
member is eligible for retirement or to postpone receipt until a later
date, up to the time the member actually retires.[^117] Therefore, the
former spouse can seek to maximize the value of his or her interest
based on the health of the parties, the nature of the employed spouse's
retirement plan, the employed spouse's prospects for promotion, and
other factors. The practicalities of an election by a former spouse to
receive payment upon eligibility of retirement in the military may,
however, be difficult. California courts require the military member who
remains on active duty past retirement eligibility to pay the former
spouse out of his current income.[^118]

####### D. Jurisdictional Provisions

With the USFSPA, Congress also limited a state court's authority to
divide military retirement pay[^119] by imposing certain jurisdictional
requirements.

> A court may not treat the disposable retired or retainer pay of a
> member \[as marital or community property\] unless the court has
> jurisdiction over the member by reason of (A) his residence, other
> than because of military assignment, in the territorial jurisdiction
> of the court, (B) his domicile in the territorial jurisdiction of the
> court, or (C) his consent to the jurisdiction of the court. [^120]

When Congress enacted the USFSPA, it limited the subject matter
jurisdiction of state courts over military retirement pay to those
instances in which personal jurisdiction existed over the military
member other than by virtue of military assignment.[^121] These
jurisdictional provisions are more restrictive than the minimum contacts
test which will subject an out-of-state defendant to the jurisdiction of
the forum state.[^122] This provision has raised two primary issues in
case law regarding jurisdiction.

The first question focused on what was required for the court to find
that the member had "consented" to the court's jurisdiction. The
majority of jurisdictions have concluded that a general appearance is
tantamount to consent to the court's jurisdiction for all purposes,
including division of the military pension.[^123] Since no requirement
exists for the member to specifically consent to the court's authority
to divide the military retirement pay, this reading of the statute seems
appropriate. After all, the USFSPA only requires consent to the
jurisdiction of the court, not consent to the court's authority to
divide the pension.[^124] One court noted as much when it stated,

> had Congress intended specific consent to be a requirement, it would
> have been a simple matter to draft the statute to do so. By drafting
> it as Congress did, the statute curtails "forum shopping" by the
> nonmilitary spouse . . . but does not give an absolute "veto power" to
> the military spouse.[^125]

The second jurisdictional issue is whether a court has continuing
jurisdiction over the divorce proceeding in order to divide military
retirement after the completion of the divorce. Although the majority of
jurisdictions hold that the courts do retain jurisdiction, continuing
jurisdiction only applies to subsequent proceedings in the original
case.[^126] Most states permit former spouses to return to court for
partition of assets that were not disposed of in the original divorce
proceedings.

In 1991, Congress amended section 1408(c)(1) of the USFSPA to prohibit
retroactive division of military retired pay after *McCarty* in divorce
decrees issued before *McCarty*.[^127] The USFSPA, therefore, prohibits
partition actions for omitted military pension benefits if the
underlying divorce decree is dated prior to June 25, 1981, and if the
decree does not divide the pension or reserve jurisdiction to do
so.[^128] This 1991 amendment was intended to ebb the tide of state
court cases in which pre-*McCarty* decrees that neither divided the
military retirement nor reserved jurisdiction to do so were reopened for
that purpose.[^129]

Although Congress has amended the jurisdictional requirements of the
USFSPA to provide more guidance for the courts, new questions regarding
jurisdiction still arise. For example, in *Delrie v. Harris*,[^130] a
federal district court addressed for the first time two specific issues
surrounding partition actions: whether 10 U.S.C. § 1408(c)(4) imposed a
heightened personal jurisdictional requirement on the court,[^131] and
what the interpretation of the prohibition on partitions contained in 10
U.S.C. § 1408(c)(1) might be.[^132] Roberta and Harry Harris married in
May of 1943 and divorced in Louisiana in September 1963.[^133] Mr.
Harris entered the military in 1943 and was married to Ms. Delrie[^134]
during approximately nineteen years of his military career.[^135] Ms.
Delrie petitioned for a partition of military retirement benefits
thirty-three years later. No court-ordered, ratified, or approved
property settlement incident to the divorce decree existed. In addition,
the parties' community property settlement did not partition the
military retirement benefits.[^136]

With respect to the first issue, Mr. Harris contended that the USFSPA
established a heightened requirement for personal jurisdiction.[^137] He
asserted that personal jurisdiction was lacking unless he resided in,
was domiciled in, or consented to suit in Louisiana.[^138] The court,
however, ruled that section 1408(c)(4) does not constitute a heightened
requirement for personal jurisdiction, but, rather, is a substantive
requirement.[^139] Therefore, the court found that the Louisiana court
had jurisdiction over the issue at the time of the divorce and that by
appearing and defending in one action, a defendant consented to
jurisdiction over suits incidental to that action.[^140]

The second issue the court addressed was an interpretation of the
prohibition on partitions contained in section 1408(c)(1).[^141] Ms.
Delrie argued that the parenthetical phrase "(including a court ordered,
ratified, or approved property settlement incident to such
decree)"[^142] limited the words divorce, dissolution, annulment, or
legal separation so that the prohibition on partition was not effective
unless a divorce included such a court ordered, ratified, or approved
property settlement.[^143] Mr. Harris maintained that the parenthetical
phrase expanded or illustrated the preceding list to include property
settlements incident to such decrees, but did not limit the preceding
list.[^144] The court found that the plain language of the statute
supported the interpretation propounded by Mr. Harris.[^145] The court
found that by enacting section 1408(c)(1) of the USFSPA, Congress acted
to prevent relitigation of divorces concluded prior to 1981.[^146]
Therefore, the court determined that Ms. Delrie had a right to the
retirement benefits initially, but failed to act on that right before it
was terminated by the passage of the USFSPA.[^147] As such, Ms. Delrie
was unable to petition for a partition of military retirement benefits
thirty-three years after the initial decree.

**III. Divisibility of Disability Pay**

One particularly controversial provision of the USFSPA is that requiring
the nondivisibility of disability benefits received by the military
retiree. Disability retirement pay may be awarded to a member when he is
so disabled that he cannot perform his duties.[^148] Once it has been
determined that the member has a qualifying amount of service, he may be
placed on the disability retired list and begin receiving disability
retired pay.[^149] In addition, a member may collect disability
retirement pay when he has a permanent disability of at least 30 percent
that renders him unfit to perform assigned duties and the member has
either served at least eight years on active duty or was disabled while
performing active duty.[^150]

Receiving military disability retirement pay instead of retirement pay
can benefit the service member greatly, regardless of whether a divorce
is involved. First of all, disability retirement pay is nontaxable to
the member.[^151] Therefore, the service member can increase his
after-tax income by receiving disability retirement pay rather than
normal retirement pay, which is fully taxable. In addition, disability
retirement pay is protected from certain creditors,[^152] thereby
further insulating the pay received by the member.

As a result of the military retiree's ability to receive disability pay
in lieu of retirement pay, the military disability retired pay system
poses serious consequences for a former spouse. Initially, the USFSPA
excluded *all* disability retired pay from the definition of *disposable
retired pay*.[^153] Consequently, under the initial provisions of the
USFSPA, no portion of a disability pension could be awarded to the
former spouse. Although courts liberally applied the definition of
disposable retired pay,[^154] this exclusion of disability pay could
result in a hardship for the former spouse.[^155] Once again, in an
attempt to provide more protection for the former spouse, Congress
amended the USFSPA in 1986.[^156] This amendment eliminated the total
exclusion of disability retired pay from the divisibility provision and
specifically defined a portion of disability pensions as disposable
retired pay.[^157]

Disabled military retirees can collect benefits from another source, the
Department of Veterans' Affairs (VA).[^158] Since a prohibition exists
against the concurrent payment of retired pay and VA compensation, in
order to receive disability pay, the member must waive his retired pay
to the extent of his VA disability compensation entitlement.[^159] The
purpose of the waiver provision is to permit a retiree to receive
retired pay and veterans' benefits, not to exceed the full rate of
retired pay, without terminating the status that affords the right to
either benefit. Since retirement pay is taxable and VA disability
compensation is not,[^160] the member has an incentive, regardless of
whether there has been a divorce, to receive VA disability payments
rather than military retirement pay.

Although the USFSPA specified that the amount of retirement pay waived
in order to receive disability benefits could not be divided by the
court, some controversy still existed among various jurisdictions.[^161]
The Supreme Court settled this controversy in *Mansell v.
Mansell,*[^162] by holding that the USFSPA does not grant state courts
the power to treat military retirement pay waived by the retiree in
order to receive veteran's disability benefits as property divisible
upon divorce.[^163] The court found that, in light of section
1408(a)(4)(B)'s limiting language as to such waived pay, the Act's plain
and precise language established that section 1408(c)(1) granted state
courts the authority to treat only disposable retired pay, not total
retired pay, as community property.[^164]

Major Mansell and his wife divorced after twenty-three years of
marriage. At the time of the divorce, Major Mansell received both Air
Force retirement pay and disability pay.[^165] Major and Mrs. Mansell
entered into a property settlement agreement, which the trial court
enforced, that included a provision that Major Mansell pay Mrs. Mansell
50 percent of his total retirement pay, including that portion he waived
to receive disability pay.[^166] Major Mansell challenged the
enforcement of the property settlement agreement, attacking the court's
treatment of military retirement pay waived to receive disability
benefits as community property.[^167] Disposable pay, as defined by the
USFSPA, excluded any retired pay waived to receive VA benefits.[^168]

After unsuccessful challenges in the California state courts, Major
Mansell sought and was granted review by the United States Supreme
Court. The Court characterized the *Mansell* issue as a question of the
statutory interpretation of section 1408(c)(1).[^169] The Court found
that the USFSPA "affirmatively grants state courts the power to divide
military retired pay, yet its language is both precise and
limited."[^170] The Court further concluded that "under \[the Act's\]
plain and precise language, state courts have been granted the authority
to treat disposable retired pay as community property; they have not
been granted authority to treat total retired pay as community
property."[^171]

The Court found that since the USFSPA's plain and precise language did
not support Mrs. Mansell's position that she was entitled to a portion
of Mr. Mansell's disability retirement pay, she could prevail only by
providing clear evidence that a literal interpretation of the USFSPA's
language would thwart the Act's "obvious purposes."[^172] Mrs. Mansell
argued that the purposes of the USFSPA were to preclude federal
preemption and protect former spouses.[^173] The Court found, however,
that congressional reports and the language of the statute itself
provided inconsistent guidance as to the USFSPA's general purpose.[^174]
The Court determined that since the legislative history, read as a
whole, indicated that Congress intended to both create new benefits for
former spouses and to place on state courts limits designed to protected
military retirees, it was impossible to identify any "obvious purposes"
that would be hindered by a literal reading. [^175] Like the *McCarty*
Court, the *Mansell* Court concluded that:

> reading the statute literally may inflict economic harm on many former
> spouses. But we decline to misread the statute in order to reach a
> sympathetic result when such a reading requires us to do violence to
> the plain language of the statute and to ignore much of the
> legislative history. Congress chose the language that requires us to
> decide as we do, and Congress is free to change it.[^176]

Justice O'Connor, writing in dissent, argued that under the majority's
interpretation of the USFSPA, the former spouses' economic security,
which Congress intended to protect, was severely undermined by allowing
unilateral decisions of their ex-spouses to waive retirement pay in lieu
of disability benefits.[^177] Justice O'Connor found it inconceivable
that Congress intended the broad, remedial purposes of the statute to be
thwarted in this manner.[^178] As a result of the inequities identified
by Justice O'Connor, some courts have taken equitable action to
compensate the former spouse when such a reduction in disposable
military retirement pay occurs.

In *Abernethy v. Fishkin*,[^179] the Florida Supreme Court addressed the
problem of a military spouse waiving retirement pay to receive
disability benefits. In *Abernethy*, the parties, pursuant to their
divorce, executed a separation agreement that awarded the former spouse
(Fishkin) 25 percent of any retirement pay received by the member
(Abernethy).[^180] The subsequent judgment entered by the court
prohibited Abernethy from pursuing any course of action which would
defeat Fishkin's right to receive her allotted portion of Abernethy's
"full net disposable retired or retainer pay" and required Abernethy to
indemnify Fishkin for any breach.[^181] Several months after the final
judgment, Abernethy elected to voluntarily separate from the Air Force
and receive benefits under the then newly enacted Voluntary Separation
Incentive (VSI)[^182] program.[^183] As with retirement pay, a service
member who receives VSI payments must waive a portion of those payments
if he accepts VA disability payments.[^184] Fishkin sought enforcement
of the divorce decree.[^185]

The trial court granted enforcement of the judgment and awarded Fishkin
25 percent of the annual VSI payments.[^186] Thereafter, Abernethy
waived portions of his VSI benefits in order to receive disability
benefits.[^187] Once again, Fishkin sought enforcement of the trial
court judgment, asking for 25 percent of the amount Abernethy received
as either VSI benefits or VA disability benefits.[^188] The Supreme
Court of Florida found that at the time of the final judgment, Abernethy
was still on active duty and was not yet eligible to receive veteran's
disability benefits.[^189] Consequently, the court concluded that
including Abernethy's VA disability benefits in calculating the amount
of retirement pay awarded to Fishkin was not improper.[^190] In
addition, the court found that the final judgment contained an
indemnification clause, which indicated the parties' intent to maintain
level monthly payments pursuant to their separation agreement.[^191] The
court found that the indemnification clause did not require the
indemnification funds come from disability benefits.[^192] Instead,
Abernethy could pay Fishkin with any other available asset.[^193]
Therefore, the court concluded that Fishkin could be awarded a portion
of Abernethy's disability pay since the final judgment did not
specifically delineate a division of disability pay.[^194]

**IV. Direct Payments to Former Spouses**

Under the USFSPA, former spouses of retired service members became
eligible to receive direct payments of a portion of their former
spouse's military retired pay to satisfy a court-ordered division of
property. The USFSPA authorizes direct payments from military retired
pay for child support, alimony, and division of property pursuant to a
court order.[^195] This provision allows a former spouse to receive
payments directly from DFAS, without the necessity of resorting to
periodic garnishment proceedings.[^196] A *court order* is defined as a
"final decree of divorce, dissolution, annulment, or legal separation
issued by a court,"[^197] and includes a court ordered, ratified, or
approved property settlement incident to such a decree.[^198]
Additionally, the term includes a final decree that modifies the terms
of a previously issued court order.[^199] In 1997, Congress once again
amended the USFSPA to assist the former spouse in obtaining a share of
military retirement pay. The 1997 Fiscal Year Defense Authorization Act
included an amendment that affected the service of process on Defense
Finance Accounting Service (DFAS), allowing service by facsimile,
electronic transmission, or regular mail.[^200] Since certified mail
return receipt requested was required previously, the change should ease
the process for requests for direct payment.

Although this direct payment provision does inure greatly to the benefit
of the former spouse, the USFSPA does place a few limitations on such a
direct payment.[^201] In order to be enforceable, the court order must
describe the payments to the former spouse in "dollars or as a
percentage of disposable retired pay."[^202] With respect to service of
the court order, the USFSPA provides that service must be on "an
appropriate agent of the secretary . . . or, if no agent has been
designated, upon the secretary."[^203] After effective service of a
valid court order, "the Secretary shall make payments (subject to the
limitations of this section) . . . to the spouse or former spouse . . .
in the amount of disposable retired pay specifically provided for in the
court order." [^204]

An additional limitation Congress enumerated in the USFSPA is that DFAS
is permitted to make direct payment only if the former spouse was
married to the service member "for a period of 10 years or more during
which the member performed at least 10 years of service creditable in
determining the member's eligibility for retired or retainer pay."[^205]
The complete section provides:

> If the spouse or former spouse to whom payments are to be made under
> this section was not married to the member for a period of 10 years or
> more during which the member performed at least 10 years of service
> creditable in determining the member's eligibility for retired pay,
> payments may not be made under this section to the extent that they
> include an amount resulting from the treatment by the court under
> subsection (c) of disposable retired pay of the member as property of
> the member or property of the member and his spouse.[^206]

Therefore, the USFSPA provides that when the member and spouse have been
married for less than ten years while the member was in credible
service, a court may order division of the retired pay, but the spouse
cannot get direct payment from DFAS.

The third limitation placed on the enforcement of court orders is that
the amount paid directly to a former spouse cannot exceed 50 percent of
the member's disposable retired pay.[^207] If a retired member's pay is
also garnished pursuant to the Social Security Act,[^208] the 50 percent
limit on direct payments is increased to 65 percent of disposable
retired pay for all court orders and garnishments paid under direct
payment and garnishments.[^209] Generally, direct payments terminate
upon the earliest of three events: the terms of the court order are
satisfied, the death of the retired member, or the death of the former
spouse.[^210]

Finally, the USFSPA provides a few limitations on direct payments that
are in effect prohibitions on DFAS or the Secretary of the respective
service. If a court order distributes an amount or percentage in excess
of the maximum, the Secretary concerned is instructed to only pay the
maximum amount authorized under the USFSPA. Under this scenario, as long
as the Secretary pays the maximum amount authorized, the court order to
the Secretary will be deemed fully satisfied.[^211] Under section
1408(c)(1), if a court order became final before June 26, 1981, payments
under section 1408(d) can only be made if the original order divided
retirement pay or reserved jurisdiction to do so.[^212] In 1997,
Congress amended section 1408(d) by adding section 1408(d)(7)(A), which
prohibits the DFAS from accepting or complying with an out-of-state
modification of an existing court order to pay benefits to a former
spouse pursuant to the USFSPA.[^213] Consequently, DFAS can only comply
with such a court order when the out-of-state court has jurisdiction
over both the military member and the former spouse as specified in
section 1408(c)(4).[^214]

**V. Survivor Benefit Plan**

The Survivor Benefit Plan (SBP) was established by Congress in 1972 as
an income maintenance program for dependents of deceased members of the
uniformed services. [^215] The SBP allows retired members of the armed
forces (both active duty and Reserve components) to provide continued
income for designated beneficiaries after the retiree's death through
the use of an annuity.[^216] Although SBP participation is
voluntary,[^217] in most cases a married member on active duty must have
their current spouse's written consent to decline participation in the
program. [^218] Additionally, even though the member must elect whether
or not to participate in the SBP before retirement, that decision is
usually irrevocable.[^219]

The annuity's cost is governed by the beneficiary category and the level
of participation.[^220] The monthly premiums are automatically deducted
from military retired pay and SBP premiums are paid with before-tax
dollars. The annuity for a spouse or former spouse is 55 percent of the
selected base amount.[^221] This annuity payment decreases when the
beneficiary reaches age sixty-two.[^222] If the beneficiary remarries
before age fifty-five, annuity payments cease.[^223] However, if that
marriage terminates for any reason, payments are revived.[^224] As
originally codified, the SBP provided no authority for coverage of a
former spouse and upon divorce, a retiree\'s former spouse lost
coverage. The SBP originally provided a monthly annuity to be paid to
"(1) the eligible widow or widower; (2) the surviving dependent
children; or (3) the natural person designated (with an insurable
interest in the member)."[^225] No provision existed to provide annuity
coverage for a former spouse, unless the former spouse was designated a
natural person.[^226]

The USFSPA amended the SBP to allow a member to make a voluntary
election to provide an annuity for "a former spouse" at the time the
member became eligible to participate in the SBP.[^227] In 1983, the SBP
was amended again by the Department of Defense Authorization Act.[^228]
This amendment allowed the member to designate his former spouse as the
SBP beneficiary, provided he elected into the SBP by designating his
then current and now former spouse when he became eligible and later
divorced that same spouse.[^229]

Although these amendments allowed a member to designate a former spouse
as a beneficiary, no provision required the member to make such a
voluntary election. Therefore, any agreements between the member and the
former spouse could not be enforced absent an additional court
proceeding by the former spouse. Congress responded to this perceived
inequity and further amended the SBP statute to provide for "deemed"
elections.[^230] This amendment provides that if the retiree agrees to
make an election for a former spouse under the terms of a divorce decree
but subsequently fails or refuses to do so, it will be considered an
election.[^231] Although a former spouse of an SBP participant is not
entitled to an annuity simply as the result of having been married to
the participant at the time the member became eligible for and elected
to participate in the benefit plan, when there is a subsequent divorce,
the former spouse may still be entitled to an annuity.[^232]

**VI. Separation Incentives**

In an effort to facilitate the military drawdown, Congress passed
legislation in 1991 providing incentive payments to members who
voluntarily left the service prior to attaining retirement
eligibility.[^233] Congress passed two separate plans: a lump-sum
payment called the Special Separation Benefit[^234] (SSB) or an annual
payment called the Voluntary Separation Incentive[^235] (VSI). A service
member who elected to leave active duty prior to retirement eligibility
could choose to receive a series of annual payments referred to as a
voluntary separation incentive or a lump-sum special separation
benefit.[^236] These early separation incentive programs were designed
to induce members of the armed forces to leave the military voluntarily
rather than run the risk of being involuntarily separated due to
reductions in the size of the military.[^237] Under SSB and VSI,
qualifying service members receive benefits based on their salary and
years of service at the time of separation.[^238] The service member\'s
affirmative request and application to participate are required to
receive either of these benefits.

The majority of states hold that SSB and VSI payments are divisible upon
divorce.[^239] In *Marsh v. Wallace*,[^240] the court held that since
SSB payments are compensation for lost retirement pay earned in the past
that the member voluntarily gives up receiving in the future, SSB
payments are subject to division upon divorce.[^241] In *Marsh*, the
divorce decree awarded Wallace (the spouse) 29 percent of Marsh's (the
member) "retirement pay."[^242] At the time of the divorce, Marsh was
not eligible to receive retirement pay.[^243] Three years after the
divorce, Marsh left active duty and received a lump sum SSB
payment.[^244] Pursuant to the SSB program, this payment was based on
his rank, base pay, and years of service.[^245] Wallace petitioned the
trial court for enforcement of the divorce decree, alleging that the SSB
payment was retirement pay as described in the divorce decree.[^246] The
trial court concluded that SSB was retirement pay and awarded Wallace a
portion of Marsh's net SSB payment.[^247]

Upholding the trial court decision, the appellate court found that
although SSB payments were designed to "assist separating personnel *and
their families,*"[^248] they were different from involuntary severance
payments because they were only made when a member voluntarily elected
to separate from active duty.[^249] In holding that SSB payments were
divisible upon divorce, the *Marsh* court addressed the nature of SSB
payments, concluding that SSB payments resembled a "buy-out of the
services member's investment in military retirement."[^250] As such, the
court determined that SSB payments were really a lump sum settlement
designed to encourage a member's voluntary early separation from
service.[^251] The court also addressed the provisions in the SSB
program that provided that if a member separated voluntarily, later
reenlisted, and subsequently retired, the amount of retirement is
reduced by the amount of the SSB payment received.[^252] Thus, the
member can wait to receive regular retirement benefits or separate now
and receive an SSB payment, but not both.[^253] Therefore, the court
found that by voluntarily electing to separate from active duty, the
member "voluntarily forfeits the opportunity to earn and receive future
retirement benefits that otherwise would become due upon successful
completion of the required service."[^254] Because Marsh elected to
receive an SSB payment in lieu of the opportunity to receive future
retirement benefits, the SSB payment he received was subject to division
as retirement pay pursuant to the property division.[^255]

In *Kelson v. Kelson,*[^256] the Florida Supreme Court came to a similar
conclusion regarding VSI payments. When the Kelsons divorced, the final
judgment of the trial court incorporated a provision of the couple's
property settlement, which awarded Mrs. Kelson a portion of her
husband's retired/retainer pay.[^257] At the time of the divorce, Mr.
Kelson had not retired from active duty.[^258] Two years later, he
elected to leave active duty and receive VSI benefits.[^259] Mrs. Kelson
filed a motion in the trial court to enforce the final judgment, arguing
that her husband's VSI benefits were the functional equivalent of the
retired pay she was entitled to receive under the parties'
agreement.[^260] The trial court "reluctantly" held that VSI benefits
were not retired/retainer pay under the settlement agreement.[^261]

The Florida Supreme Court examined the provisions of the VSI/SSB
statutes and focused on the fact that the VSI/SSB benefits were
calculated based on years of service and rate of pay similar to
retirement pay.[^262] In addition, the court also looked at the
statute's provisions requiring recoupment of incentive pay from
retirement benefits when a service member who has received SSB/VSI
subsequently reenlists and qualifies for retirement.[^263] Therefore,
the court held that since, as a practical matter, VSI payments were the
functional equivalent of the retired pay in which Mrs. Kelson had an
interest under the settlement agreement, she was entitled to a portion
of the benefits in conformity with the settlement agreement.[^264]

In *Horner v. Horner*,[^265] Pennsylvania joined a minority[^266] of
states by ruling that SSB payments are neither marital property nor
retirement benefits and, therefore, not divisible.[^267] The Horners
divorced after 12 years of marriage. [^268] Pursuant to their divorce,
the court awarded Mrs. Horner a percentage of her husband's military
retirement pay.[^269] Four years later, after he failed to make the next
higher rank, he enrolled in the SSB program.[^270] Upon learning of
this, Mrs. Horner petitioned the court to enforce the divorce decree and
award her a percentage of the SSB payment.[^271] The Pennsylvania
Supreme Court upheld the lower court's decision and agreed with its
analysis that Mr. Horner's SSB payment was neither marital property nor
retirement pay and, therefore, was not divisible.[^272] Similar to other
jurisdictions, Pennsylvania defined marital property as property that is
acquired during the marriage.[^273] The court decided that since the SSB
program did not exist at the time of the Horner's divorce, Mr. Horner
did not acquire any interest in the SSB during the marriage and did not
even anticipate it as a military benefit.[^274] The court held that only
if her husband reached retirement in the reserve component would Mrs.
Horner be entitled to receive her percentage of that retirement pay as
awarded in the divorce decree.[^275]

In addition to the court's analysis in *Horner*, the legislative history
of VSI payments may provide support for the position that VSI/SSB
payments should not be considered marital property subject to division.
The legislative history of the Act creating the VSI program "reveals
that Congress enacted the legislation 'because of \[its\] concern over
the effect of strength reductions on \[service members\] and their
families.'"[^276] Moreover, Congress noted that the program "would give
a 'fair choice to personnel who would otherwise have no option but to
face selection for involuntary separation, and to risk being separated
at a point not of their own choosing.'"[^277] Therefore, after
considering the congressional intent behind the VSI program, perhaps
courts should characterize VSI payments as more closely analogous to
severance benefits than retirement benefits.[^278]

**VII. Dual Compensation Act**

Military retirees often begin a second federal civil service career
after their military service is concluded. The Dual Compensation Act
(DCA) required retired regular officers in the federal civil service to
forego a percentage of their military retired pay as a condition of
federal employment.[^279] Until October 1999, when Congress passed the
National Defense Authorization Act for 2000 (FY2000 Authorization Act),
this had a significant effect on a former spouse entitled to receive a
share of military retired pay.[^280] The impact of the DCA on military
retirees and their former spouses was radically changed by the passage
of the FY2000 Authorization Act.[^281] The Act contains a provision that
repeals the Dual Compensation Statute.[^282] This effectively allows a
military retiree to collect their retirement concurrently with
collection of a federal salary.[^283]

This provision was not originally included in the FY2000 Authorization
Act, but was added later as a result of an amendment sponsored by
Senator Michael D. Crapo.[^284] As a result, there is little legislative
history as to the intent of this provision of the Act. Although there is
no mention in the legislative history of the USFSPA or its effects on
military retirees, the passage of this provision seems to contradict the
military retirees' argument that military retirement is reduced current
pay, rather than an asset earned during employment with payment deferred
until retirement.[^285] Instead, this provision would seem to classify
military retirement as a reward for prior service, while characterizing
a salary from the federal government as compensation for current
service. In addition, the repeal of the DCA is silent as to whether
there will be a grandfather clause for members that have executed
waivers prior to FY2000. As a result, a historical perspective on the
DCA and its effect on the distribution of retired pay is necessary.

Prior to the passage of the FY2000 Authorization Act, the USFSPA
definition of disposable military retirement pay excluded portions of
retirement waived to collect salary received subject to the DCA.[^286]
The USFSPA required a retiree to voluntarily waive a portion of
longevity retirement in order to receive salary subject to the limits of
the DCA.[^287] If the member executed such a waiver, the former military
spouse lost her interest in retirement benefits once the military member
retired or separated from the service and then took a federal job.[^288]
Although the years of military service counted toward the thirty years
required for federal retirement, once the employee retired from federal
civil service, no "military retired pay" existed.[^289] Therefore, this
waiver often drastically affected the amount of disposable retirement
pay available for division under a divorce decree.

In order to alleviate the effect of this waiver on the former spouse,
many courts continued to award a portion of gross rather than disposable
retirement pay. In *Gaddis v. Gaddis*,[^290] the Arizona Court of
Appeals ruled that the former spouse was entitled to the original award
of military retirement pay, despite the waiver filed by the member to
collect a federal salary covered by the DCA.[^291] The trial court
awarded Mrs. Gaddis 50 percent of Mr. Gaddis's disposable military
retirement pay. [^292] This resulted in Mrs. Gaddis receiving
approximately \$750 per month.[^293] When Mr. Gaddis took a civil
service job, the filing of his waiver reduced Mrs. Gaddis's monthly
portion of disposable retirement pay by 50%.[^294] After Mrs. Gaddis
filed a petition for an order to show cause, the trial court ordered Mr.
Gaddis to continue paying the original \$750.[^295] Noting that the
original community property award established an enforceable property
interest,[^296] the court concluded that it was not dividing his civil
service salary, since he was not receiving this income at the time of
the divorce.[^297] The court also felt that Mr. Gaddis's deliberate
subversion of the decree's award was fundamentally unfair to his former
spouse.[^298] As a result, the court held that Mr. Gaddis's federal
employment altered the calculation of disposable income, but did not
alter Mrs. Gaddis's community property interest in the retirement plan
at the time of the decree.[^299]

The impact of the DCA on disposable retired pay was further exemplified
in *Knoop v. Knoop*.[^300] In *Knoop*, a former spouse was awarded 36.5
percent of her husband\'s military retirement pay.[^301] Once the member
retired, the former spouse received about \$800 per month as her share
of military retired pay.[^302] Several months later, the retiree
accepted a federal civil service job with the Army.[^303] Under the DCA,
the member was required to waive a portion of his military retired pay
as a condition of accepting the new position.[^304] Using these
deductions and calculating the 36.5 percent share to his former spouse,
the member then reduced his property division payments to his former
spouse.[^305] This resulted in a reduction of almost \$300 per month,
reducing her share to just over \$500 per month. The former spouse filed
suit challenging this reduction.[^306]

The disagreement centered on the scope of disposable retired pay. The
retiree's decision to reduce payments to his former spouse was based on
the assumption that references to retirement pay found in the parties'
property division referred to disposable retired pay as it is defined by
the USFSPA.[^307] Disposable retired pay equals total monthly retired
pay to which a member is entitled minus deductions, including amounts
required by law to be waived to receive certain compensation under the
Dual Compensation Act.[^308] The former spouse insisted that her share
of the retirement pay was "36.5 percent of retirement pay remaining
after deduction of federal withholding."[^309] The retiree responded
that the former spouse was only entitled to 36.5 percent of his
*disposable* retired pay remaining after the deduction for federal
withholding.[^310] The North Dakota Supreme Court rejected the retiree's
argument that the USFSPA and *Mansell* required retirement pay, as used
in the amended judgment, to be construed as disposable retired
pay.[^311] The court held that the trial court had jurisdiction to treat
the member's disposable retired pay as marital property subject to
division and could award up to 50 percent to the former spouse.[^312]
The court concluded that since the underlying order only awarded 36.5
percent of gross retired pay minus federal withholdings, enforcement
would not cause payments to the former spouse in excess of the 50
percent limits provided in the USFSPA.

In an effort to rectify the harm that DCA waivers had upon a former
spouse, in 1997 Congress amended the Civil Service Retirement Act[^313]
and the Federal Employees Retirement Act.[^314] These amendments
required an employee to authorize the Office of Personnel Management to
deduct some of his retirement pay for the former spouse as a
prerequisite to using the years of military service towards federal
retirement.[^315] This essentially allowed a former spouse to collect
her awarded portion of military retirement pay, regardless of whether
the member subsequently took a federal government position. The amount
deducted equals the amount the former spouse would have received had the
member not taken the federal job.[^316] Once again, Congress attempted
to further protect former spouses and their interest in military
retirement pay. With the passage of the FY2000 Authorization Act,
Congress has effectively eliminated any concern regarding the DCA for
former spouses and military members. The question now remains how the
courts and ultimately Congress will deal with divorce decrees and
judgments that have already incorporated the provisions of the DCA into
the division of property.

**VIII. Domestic Abuse Cases**

Most of the amendments to the USFSPA inure to the benefit of the former
spouse of a member who retires from active duty pursuant to a regular
retirement program. However, Congress has recognized that there are
other spouses and former spouses who deserve to receive benefits from
the member, regardless of whether the member actually retired. In this
vein, Congress felt compelled to address the plight of victims of spouse
and child abuse and the hardship imposed on them by discharge of the
member resulting from the abuse. As a result, Congress amended the
USFSPA in 1993 to provide for spouses or former spouses[^317] who are
unable to collect their portion of retirement pay and other benefits
because the service member receives a punitive discharge imposed as a
result of domestic abuse.[^318] Basically, these provisions were enacted
to allow the spouse or former spouse, who is a victim of or the parent
of a victim of domestic abuse, to collect retired pay and maintain
entitlements to other benefits, such as medical benefits, as if the
member retired without engaging in misconduct. [^319]

The provisions require that a court order be executed awarding a portion
of retired pay, the member be eligible for retirement by years of
service but lose the right to retire due to misconduct involving
dependent abuse, and that the person having the court order be either
the victim or the parent of the victim of the abuse.[^320] Although the
USFSPA specifically provides for these victims, it also requires that
the spouse be otherwise entitled to the pay and benefits (i.e., the
spouse must be awarded a portion of retirement pay pursuant to a divorce
and be either a "20/20/20" or "20/20/15" spouse to receive the other
benefits).[^321] These benefits terminate upon remarriage. Unlike the
benefits normally awarded to 20/20/20 and 20/20/15 spouses, however,
divorce, annulment, or death of the subsequent spouse can revive these
benefits.[^322] As a result of the universally recognized need to
protect these spouses and former spouses, these provisions have not
generated substantial controversy or criticism by the courts.

**IX. Additional Benefits to Former Spouses**

Under the USFSPA, additional nonmonetary benefits may also extend to
former spouses.[^323] Although the extension of these benefits to former
spouses has not elicited the same controversy as the division of
military retired pay,[^324] the benefits constitute important tangible
benefits to the former spouse.[^325] The level of these benefits can be
classified by determining the years of creditable service by the
member,[^326] the years of marriage, and the overlap between the two.
This produces two main categories of entitled former spouses: the
20/20/20 spouse and the 20/20/15 spouse.

The 20/20/20 spouse qualifies for benefits because there was twenty
years of creditable service by the member, twenty years of marriage, and
twenty years of overlap between the marriage and the creditable service.
The former spouse is entitled to commissary and Post Exchange/Base
Exchange (PX/BX) privileges as long as the former spouse is
unremarried.[^327] In addition, the 20/20/20 spouse qualifies for full
military health care benefits as long as the former spouse is
unremarried.[^328] These benefits include the full military health care
program, including CHAMPUS/Tricare coverage (up to age sixty-two) and
in-patient and outpatient care at military treatment facilities.[^329]
Termination of a subsequent marriage by divorce or death does not revive
health care benefits, but an annulment does. Also, the former spouse's
enrollment in an employer-sponsored health insurance plan cancels
military health care benefits.[^330] For both commissary and PX/BX
privileges and for health care benefits, the date of the divorce is
irrelevant, as long as the 20/20/20 rule is satisfied.

As originally enacted, the USFSPA only provided medical, commissary and
exchange privileges to 20/20/20 spouses. In an effort to further expand
coverage for former spouses, Congress amended the USFSPA in 1985 to
provide for certain benefits for the 20/20/15 spouse.[^331] The 20/20/15
spouse qualifies for benefits because there were at least twenty years
of creditable service by the member, twenty years of marriage, and
fifteen years of overlap between the marriage and the creditable
service. To qualify for any benefits, the former spouse must remain
unremarried.[^332] The 20/20/15 spouse is entitled to full military
medical benefits, like a 20/20/20 spouse, if the divorce occurred before
April 1, 1985.[^333] Otherwise, the former spouses is entitled to
transitional health care benefits, provided the spouse is unremarried
and is not covered by an employer-sponsored health insurance plan. These
transitional benefits include full medical coverage for one year after
the divorce, with the possibility of limited coverage for an additional
year.[^334] To qualify for a second year of limited coverage, the former
spouse must enroll in the Department of Defense Continued Health Care
Benefit Program.[^335] The 20/20/15 spouse is not entitled to any
commissary or PX/BX privileges.

The Department of Defense Continued Health Care Benefit Program is
available for any member or dependent who loses entitlement to military
health care.[^336] This includes former spouses, members who do not
retire but leave the service, and their dependents. Basically, this
program is designed to provide transitional care until alternative
coverage can be obtained.[^337] As long as the individual enrolls within
sixty days of losing CHAMPUS benefits, his eligibility is
guaranteed.[^338] In terms of benefits provided, the program provides
temporary health care coverage similar to the benefits offered by
CHAMPUS. The primary difference in this program is that the individual
must pay a premium in order to receive benefits.[^339]

It is interesting to note that because the creditable service
requirement exists in order for former spouses to receive most
nonmonetary benefits, the enactment of VSI and SSB can effect the
ability of a former spouse to receive these nonmonetary benefits.
Although the majority of courts hold that VSI and SSB are divisible, by
the very function of these programs, a military member can preclude his
former spouse from receiving nonmonetary benefits. Since these programs
encourage a member to separate from the service before he reaches
retirement eligibility, the member will never have twenty years of
credible service in order for the spouse to qualify as a 20/20/20 or
20/20/15 spouse.[^340] Therefore, the former spouse of a military member
who elects an "early out" under one of these programs is severely
disadvantaged in receiving benefits as compared to a similarly situated
former spouse of a military member who retired under normal
circumstances. Although the American Bar Association has called for
measures to rectify these inequities,[^341] Congress has not yet
responded.

**X. Proposed Legislation**

Although most of the amendments to the USFSPA have benefited the former
spouse, that tide seems ripe for change. There has been growing
criticism of the USFSPA and its effect on military retirees.[^342] In
response to such criticism, in January of 1999, Representative Bob Stump
introduced to the House of Representatives the Uniformed Former Spouses
Equity Act of 1999 (the Equity Act).[^343] As described by
Representative Stump, the purpose of the Equity Act is to "restore a
small measure of balance to the way military retired pay is handled
during a divorce."[^344] The Equity Act is comprised of four main
sections.

The first section requires termination of payments to a former spouse
upon remarriage.[^345] The entire provision reads as follows:

> \(a\) IN GENERAL- Section 1408(c) of title 10, United States Code, is
> amended by adding at the end the following new paragraph:
>
> \(5\) Payment from the monthly disposable retired pay of a member to a
> former spouse of the member pursuant to this section shall terminate
> upon the remarriage of that former spouse, except to the extent that
> the amount of such payment includes an amount other than an amount
> resulting from the treatment by the court under paragraph (1) of
> disposable retired pay of the member as property of the member or
> property of the member and his spouse. Any such termination shall be
> effective as of the last day of the month in which the remarriage
> occurs.
>
> \(b\) EFFECTIVE DATE- The amendment made by subsection (a) shall apply
> with respect to marriages terminated by court orders issued before,
> on, or after the date of the enactment of this Act. In the case of
> such a court order issued before the date of the enactment of this
> Act, such amendment shall apply only with respect to amounts of a
> member\'s retired pay that are payable for months beginning more than
> 180 days after the date of the enactment of this Act.[^346]

Once the former spouse remarries, she would no longer be entitled to a
portion of the retirement pay. The Equity Act would terminate these
benefits on the last day of the month in which the remarriage
occurs.[^347] This provision of the Equity Act has logical appeal. One
rationale for permitting retirement pay to be divided as marital
property was to provide support for a former spouse in those few states
that did not authorize alimony. Therefore, where remarriage extinguishes
the obligation for alimony in most circumstances, remarriage should also
terminate the payment of retirement pay to the former spouse. However,
this assumes that military retirement benefits do not have the status of
property. Currently, the central provision of the USFSPA focuses on the
characterization of military retirement pay as property subject to
division according to state law.[^348] This amendment would essentially
eliminate the status of military retirement benefits as property. The
ramifications of this recharacterization on existing divorce decrees
would be great. If courts were to allow reopening of existing decrees
pursuant to this amendment, the retroactive effects of this amendment
would be burdensome, to say the least. The flood of cases that occurred
after the initial passage of the USFSPA to reopen decrees entered before
*McCarty* would pale in comparison.[^349]

This provision of the Equity Act also implicates another rationale
supporting the division of military retirement pay, which is to provide
for the spouse that has no other means of support. In many divorces,
military retirement is the only significant asset of the marriage for
distribution. In those situations, when the former spouse remarries,
there is a presumption that she now has additional means of support such
that the military retired pay is no longer needed. This rationale
assumes that the former spouse that is unmarried has a greater financial
need for the retired pay income. However, in dividing property upon
divorce, courts are generally not concerned solely with financial need,
but rather an equitable distribution of the assets. Therefore, in some
situations a former spouse can still be entitled to a portion of the
retirement pay, even without a great financial need. This amendment
would preclude these former spouses from collecting property to which
they are entitled, simply because they got remarried, not as a result of
a change in economic circumstances. In addition, there is a concern that
this provision of the Equity Act would put a chill on remarriage by
former spouses.[^350] The loss of their portion of military retirement
pay would be a disincentive to former spouses to get remarried. This
would contravene the long-standing public policy in promoting marriages
and the family unit.[^351]

The second provision of the Equity Act provides that when there is a
divorce prior to the retirement of the member, the disposable retired
pay of the member, for the purposes of determining the amount of monthly
payment to the spouse, is determined at the time of divorce.[^352] The
full provision reads:

> \(a\) IN GENERAL- Section 1408(c) of title 10, United States Code, as
> amended by section 2, is further amended by adding at the end the
> following new paragraph:
>
> \(6\) In the case of a member as to whom a final decree of divorce,
> dissolution, annulment, or legal separation is issued before the date
> on which 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, 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.
>
> \(b\) IMPLEMENTATION- With respect to payments to a former spouse from
> a member\'s disposable retired pay pursuant to court orders issued
> before the date of the enactment of this Act, the Secretary shall\--
>
> \(1\) within 90 days of such date, recompute the amounts of those
> payments in accordance with paragraph (5) of section 1408(c) of title
> 10, United States Code, as added by subsection (a); and
>
> \(2\) within 180 days of such date, adjust the amount of disposable
> retired pay payable to that former spouse accordingly.
>
> \(c\) EFFECTIVE DATE- The amendment made by subsection (a) shall apply
> with respect to court orders issued on or after June 25, 1981.[^353]

The Equity Act provides that the computation, based on pay grade and
length of service while married, is made on the date of the final decree
without regard to the time served in the military after the
divorce.[^354] This provision attempts to rectify the situation whereby
a member still on active duty is divorced and the court awards a portion
of the disposable retired pay to the former spouse. In this situation,
increases in retired pay as a result of service or promotions after
divorce are used, to the detriment of the military member, in the
computation of disposable retired pay. The concern is that as a result,
former spouses are awarded a portion of the retirement pay that is
properly attributable to the hard work and dedication of the member
after the marriage has ended. In addition, awarding any amount to the
former spouse that is properly attributable to the efforts of the member
contravenes the notions of community property, where traditionally the
community's interest in marital property ends when the community ends.

Under the Equity Act, determining the divisible amount at the time of
the divorce decree ultimately reduces the amount of retired pay
distributed to the former spouse. The genesis of this issue is the
member's decision not to retire. By remaining on active duty, the member
delays the payment of retirement pay. However, the member also increases
the amount of retirement pay ultimately distributed. Therefore, the
delay incurred by waiting to receive retirement pay is offset by the
increased amount of pay at retirement. A decision to defer retirement
affects the former spouse by delaying receipt of the retired pay but
increasing the amount of retired pay payable to the former spouse. Under
the current provisions of the USFSPA, the former spouse shares in the
increase as a result of delaying the payment of the retirement pay. By
contrast, under the proposed provision of the Equity Act, where the
amount distributed to the former spouse is determined at the time of the
decree, the former spouse does not share in the increase in retirement
pay. Although the member would receive increased compensation as a
tradeoff for the delay, the former spouse would not receive any
additional compensation. Therefore, this provision would effectively
result in the former spouse receiving a smaller portion of the
retirement benefits upon retirement, while also continuing to have a
delay in payment. The military member is able, therefore, to make a
unilateral decision as to when to retire that has profound effects on
the former spouse. Under this proposed provision, any delay in
retirement works to the benefit of the military member and to the
detriment of the former spouse. If this provision is enacted, courts may
respond by adopting the reasoning of some California courts and allow
the former spouse to elect to receive payment from the member when the
member is eligible for retirement rather than at actual
retirement.[^355]

In addition, this provision of the Equity Act would not reward the
former spouse for her contributions to the foundation years of the
member's military career. Although the member retires at a higher rank
than at divorce, the ranks accrued during the marriage are just as
important as the ranks accrued later in the career.[^356] Essentially,
in order to advance in rank, the member must perform at the lower ranks.
Since the former spouse supported the member in his quest to achieve
higher rank, the former spouse should be entitled to benefit from the
rewards of that support.

The third provision of the Equity Act requires a former spouse to obtain
a court order for their portion of retirement pay within two years of
the date of the final decree of divorce, dissolution, annulment, or
legal separation, or six months after the enactment of the Equity
Act.[^357] This provision provides:

> \(a\) IN GENERAL- Subsection (c)(4) of section 1408 of title 10,
> United States Code, is amended to read as follows:
>
> \(4\) A court may not after the date of the enactment of the Uniformed
> Services Former Spouses Equity Act of 1999 treat the disposable
> retired pay of a member in the manner described in paragraph (1)
> unless\--
>
> \(A\) the court has jurisdiction over the member by reason of (i) the
> member\'s residence, other than because of military assignment, in the
> territorial jurisdiction of the court, (ii) the member\'s domicile in
> the territorial jurisdiction of the court, or (iii) the member\'s
> consent to the jurisdiction of the court; and
>
> \(B\) the member\'s spouse or former spouse obtains a court order for
> apportionment of the retired pay of the member not later than (i) two
> years after the date of final decree of divorce, dissolution,
> annulment, or legal separation, including a court ordered, ratified,
> or approved property settlement incident to such a decree, or (ii) the
> end of the six-month period beginning on the date of the enactment of
> the Uniformed Services Former Spouses Equity Act of 1999, whichever is
> later.
>
> \(b\) EFFECTIVE DATE- The amendment made by subsection (a) shall apply
> with respect to final decrees of divorce, dissolution, annulment, or
> legal separation issued on or after June 25, 1981.[^358]

This provision attempts to preclude courts from reopening long settled
divorce decrees to divide previously undivided military retired pay.
Although the USFSPA was amended to prohibit retroactive division of
military retired pay in decrees issued before *McCarty*, it does allow
courts to revisit this division if they retained the jurisdiction to do
so.[^359] Once the six month grace period for implementation of the
Equity Act has passed, this provision would explicitly preclude a court
from looking at the retired pay issue, except in the initial proceeding,
or within two years of the decree. As a result, a former spouse, who at
the time of dissolution was not awarded a portion of the retirement pay,
would be unable to petition the court for division of the retired pay at
a later date. This would provide greater finality to divorce proceedings
regarding military retirement pay. Although this greater finality would
inure to the benefit of the military member, there is some question as
to whether it would be advantageous for the former spouse. In those
situations where the division of property at the time of dissolution
does not include a division of the retirement benefits, but rather
reserves jurisdiction to do so, this allows the court greater
flexibility for providing for the former spouse. If a change in
financial circumstances occurs, either as a result of the actions by the
former spouse or the military member, under this provision the court
would be unable to revisit the issue of a division of the military
retirement.

The fourth provision of the Equity Act prohibits courts from treating,
as retired pay, amounts that have been waived in order to receive
veterans disability compensation.[^360] The full text of this provision
is as follows:

> \(a\) IN GENERAL- Subsection (e)(4) of section 1408 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 pursuant to legal processes
> under section 459 of the Social Security Act (42 U.S.C. 659) amounts
> which 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
> compensation under title 38.
>
> \(b\) 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)\--
>
> \(A\) by inserting 'or' at the end of subclause (III);
>
> \(B\) by striking out 'or' at the end of subclause (IV) and inserting
> in lieu thereof 'and'; and
>
> \(C\) by striking out subclause (V); and
>
> \(2\) in paragraph (2)\--
>
> \(A\) by redesignating subparagraphs (E) and (F) as subparagraphs (F)
> and (G), respectively; and
>
> \(B\) by inserting after subparagraph (D) the following new
> subparagraph:
>
> \(E\) are paid by the Secretary of Veterans Affairs as compensation
> for a service-connected disability under title 38, United States Code,
> when military retired pay has been waived in order to receive such
> compensation.
>
> \(c\) 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.[^361]

This provision seeks to prevent courts from circumventing the
prohibition on division of disability pay found in *Mansell* by awarding
a comparable amount of alimony. Some courts have attempted to provide
the same amount of compensation to the former spouse as was initially
required before the member executed a disability waiver.[^362] These
courts have protected the former spouse's interest in the amount awarded
in the separation agreement or final judgment and not looked to the
source of the funds. Some courts have recharacterized these benefits as
alimony.[^363] Other courts, such as that deciding *Abernethy*, have
looked to safeguard clauses and indemnification clauses to provide
benefits.[^364] This amendment would, to the benefit of the military
member, stop courts from using this back door approach to dividing
disability benefits.

**XII. Conclusion**

The many amendments to the USFSPA, as well as the various
interpretations by the courts, have led to a reaffirmation of the former
spouse's interest in military retirement pay. However, criticism of the
USFSPA and its effects on military retirees continues to grow. The
critics call for an overhaul of the USFSPA to restore an evenhanded
approach in divorces involving members and retirees. This criticism
seems to have found a refuge in Congress in the Equity Act. In an effort
to assess the Department of Defense's perspective on the effects of the
Equity Act, Congress requested that the Department of Defense provide
comment.[^365] The Department of Defense responded to this request,
indicating that it was premature to comment until the previously
required review of the USFSPA was completed.[^366] Although Congress
will not likely move forward with the Equity Act until the Department of
Defense reports its findings, support for the Equity Act is
growing.[^367]

Until such time as the Equity Act is implemented, the legal assistance
attorney must have a working knowledge of the current provisions of the
USFSPA. If the provisions of the Equity Act are implemented, the legal
assistance attorney must be prepared to adequately advise members,
retirees, and spouses on its effect on existing divorce decrees and
prospective divorce actions.

[^1]: ^\*^ *Captain Kuenzli (B.A., University of California at Davis;
    J.D., Gonzaga University School of Law) is an Assistant Staff Judge
    Advocate at Scott Air Force Base, Illinois. She is a member of the
    Washington State Bar*.

[^2]: Uniformed Services Former Spouses Protection Act, Pub. L. No.
    97-252, 96 Stat. 730 (1982) (codified at 10 U.S.C. §§ 1408, 1447-50,
    1072, 1076, 1086 (1994 & Supp. IV 1998)).

[^3]: The legislative history states,

    > \[t\]he committee received extensive testimony from the uniformed
    > services and public witnesses on the contributions and sacrifices
    > made by the military spouse throughout the service member's career
    > . . . The concept of the military family and its importance to
    > military life is widespread and publicized. Military spouses are
    > still expected to fulfill an important role in the social life and
    > welfare of the military community.

    [S. Rep. No.]{.smallcaps} 97-502, at 6 (1982), *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1601. *See also* Nancy Scannell, *"We Also
    Served:" The Lot of Former Military Wives; Divorce*, [Wash.
    Post]{.smallcaps}, Dec. 18, 1980, at Md. 1.

[^4]: Air Force Instruction 51-504, Legal Assistance, Notary and
    Preventive Law Programs ¶ 1.2 (May 1, 1996). Air Force practitioners
    are permitted to and often do provide legal assistance to military
    members and their spouses who are considering divorce.

[^5]: There are numerous articles providing guidance to the practitioner
    on the USFSPA. *See, e.g.*, Meredith Cohen, *Representing the
    Military Spouse*, [Fla. Bar J.]{.smallcaps}, June 1987, at 117.

[^6]: *See* David Evans, *A Divorce in the Military Can Really Hurt*,
    [San Antonio Express News]{.smallcaps}, Oct. 5, 1996, at B7; Reg
    Jones, *Former Spouses Need to Be Benefit Savvy*, [Fed.
    Times]{.smallcaps}, July 26, 1999, at 17.

[^7]: *See* discussion *infra* Part IX.

[^8]: 453 U.S. 210 (1981). For a discussion of the facts and holding in
    *McCarty*, see *infra* Part I.B.

[^9]: Although not specifically addressed in this article, state law can
    drastically affect the way in which the USFSPA is applied in divorce
    proceedings. *See* Lieutenant Colonel Block, *Former Spouses'
    Protection Act Update*, [Army Law.,]{.smallcaps} July 1996, at 21
    (analyzing state laws concerning the application of the USFSPA).
    However, since the publication of Lieutenant Colonel Block's article
    there have been a few state law changes, such as in North Carolina.
    Previously, North Carolina had a vesting requirement for
    distribution of marital property. George v. George, 444 S.E.2d 449
    (N.C. 1994) (holding that since retirement pay was not vested at
    time of divorce, it was not marital property subject to
    distribution). In June 1997, the North Carolina legislature enacted
    a new law that did away with the vesting requirement for division of
    pensions. H.B. 535, 1997 Legis. Sess., S.L. 212 (N.C. 1997)
    (codified at [N.C. Gen. Stat.]{.smallcaps} § 50-20(b)(1) (1999)).
    The statute specifically includes military retirement benefits that
    are classified under the USFSPA as marital property and are subject
    to division, and applies to all petitions for equitable distribution
    filed on or after October 1, 1997. *Id.*

[^10]: 453 U.S. 210.

[^11]: The eight community property states are Arizona, California,
    Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. [W.
    DeFuniak & M. Vaughn, Principles of Community Property]{.smallcaps}
    1, 56 (2d ed. 1971).

[^12]: *See id.* at 55. Ganancial property is a type of community
    property enjoyed by husband and wife, where the property is
    divisible between them equally upon dissolution of marriage.
    [Black's Law Dictionary]{.smallcaps} 679 (6th ed. 1990). Ganancias
    is defined in Spanish law as to gain or profit. *Id.*

[^13]: [DeFuniak & Vaughn,]{.smallcaps} *supra* note [10,]{.smallcaps}
    at 234.

[^14]: *Id.* at 2-3.

[^15]: *See id.* at 148.

[^16]: *See id.* at 149.

[^17]: *See id.* at 150.

[^18]: The remaining forty-two states are common-law jurisdictions. For
    list of community property jurisdictions, see [DeFuniak &
    Vaughn,]{.smallcaps} *supra* note 10, at 56.

[^19]: Early American laws were derived from the theory that "in
    marriage the husband and wife were merged into one and, in effect,
    the husband was that one." *Id.* at 4. Since the husband was the
    head of the household, all of the wife's property owned prior to
    marriage became the husband's upon marriage, as did all of her
    personal earnings and earnings from her property acquired during
    marriage. *Id.* at 4-5. As a result of these common law inequities,
    almost all states passed married women's property acts. 2[H Clark,
    Law of Domestic Relations]{.smallcaps} 503 n.4 (2d ed. 1988). These
    statutes allowed the wife to retain and control her own property.
    *Id.* at 504.

[^20]: 2H [Clark]{.smallcaps}, *supra* note 18, at 183.

[^21]: *See id.*

[^22]: *See id.* at 220-21.

[^23]: *See id.* at 176-77.

[^24]: *See id.* at 184. Some states limit the type of property that is
    subject to division, precluding property obtained prior to marriage
    by one spouse only or retirement benefits that have yet to vest.
    *Id.*

[^25]: *See id.*

[^26]: 453 U.S. 210 (1981).

[^27]: There were five previous preemption cases. *See* Hisquierdo v.
    Hisquierdo, 439 U.S. 572 (1979); Yiatchos v. Yiatchos, 376 U.S. 306
    (1964); Free v. Bland, 369 U.S. 663 (1962); Wissner v. Wissner, 338
    U.S. 655 (1950); McCune v. Essig, 199 U.S. 382 (1905).

[^28]: Some courts have determined, largely due to the wording of a
    separation agreement or final judgment, that an award of a portion
    of military retirement pay is actually an award of maintenance,
    instead of a division of property. *See, e.g.,* Thomas v. Abel, 688
    N.E.2d 197, 199 (Ind. Ct. App. 1997) (holding that a separation
    agreement which provided that "after the Husband attains the age of
    sixty years he shall pay to the Wife as support and maintenance an
    amount equal to one-third (1/3) of his monthly pension . . . as a
    retired Army National Guard officer . . . these payments shall
    continue until the death of the wife or the Husband, whichever
    occurs first" was an award of maintenance rather than a distribution
    of property). The *Thomas* court looked at the following factors to
    make its determination: 1) a specific designation as maintenance, 2)
    provisions for termination of payments upon the death of either the
    wife or husband, and 3) the installments are to be made from future
    income. *Id.* at 199-200 (citing Coster v. Coster, 452 N.E.2d 397
    (Ind. Ct. App. 1983)).

[^29]: McCarty, 453 U.S. at 216.

[^30]: *See id.*

[^31]: *See id.*

[^32]: *See id.* at 218.

[^33]: *Id.* at 221.

[^34]: *See id.* The current pay theory is supported by various rules
    concerning military retirement pay. *See generally* Lieutenant
    Colonel Jeffrey S. Guilford, *Exploring the Labyrinth: Current
    Issues Under the Uniformed Services Former Spouses Protection Act*,
    132 [Mil. L. Rev.]{.smallcaps} 43 (1991). First, in order to avoid
    being subject to involuntary recall to active duty, the retired
    member must resign. However, resigning in this fashion also
    terminates the military retirement benefits. Second, recalled
    retirees receive full pay and allowances, but not active duty pay
    for the time they are serving. Instead, they only receive their
    retired pay. Third, military pensions do not vest like civilian
    pensions. They cannot be assigned, have no cash value, and are
    subject to reduction by Congress at any time. Fourth, military
    retirees continue to be subject to the Uniform Code of Military
    Justice. As a result, a postretirement court-martial conviction can
    result in reduction or even termination of military retirement
    benefits. 10 U.S.C. § 802(4) (1994 & Supp. IV 1998). *See also*,
    McCarty, 453 U.S. at 223 n.16 (referencing Hooper v. United States,
    326 F.2d 982, 987, *cert. denied*, 377 U.S. 977 (1964)).

[^35]: 10 U.S.C. § 688. Recent events in Southwest Asia and the Balkans
    demonstrate that this is not merely a possibility.

[^36]: The reduced service argument stems from a comparison of the
    service rendered by military retirees and those who are on active
    duty. *See* Guilford, *supra* note 33, at 44.

[^37]: McCarty, 453 U.S. at 223.

[^38]: *See id.*

[^39]: *See id.* at 232.

[^40]: *See id.* at 232-33.

[^41]: *Id.* at 234.

[^42]: *See id.* at 235.

[^43]: *Id*. at 232.

[^44]: 439 U.S. 572 (1979). Then-Justice Rehnquist, writing for the
    dissent in *McCarty*, opined that *Hisquierdo* limited Supreme Court
    intervention into the field of family law to areas in which
    "Congress had 'positively required by direct enactment' that state
    law be preempted." McCarty, 453 U.S. at 236 (Rehnquist, J.,
    dissenting). Rehnquist argued that no such requirement existed
    concerning the division of military retirement pay as though it was
    community property. *Id.* at 236-37 (Rehnquist, J., dissenting).

[^45]: McCarty, 453 U.S. at 224 (citing [S. Rep. No]{.smallcaps}. 1480,
    at 6 (1968), *reprinted in* 1968 U.S.C.C.A.N. 3294, 3298).

[^46]: *See id.* at 223.

[^47]: *Id.* at 232 (citing United States v. Yazell, 382 U.S. 341, 352
    (1966) (establishing the clear and substantial federal interests
    test)).

[^48]: *See id.* at 233-35.

[^49]: *Id.* at 236.

[^50]: *See id.* at 235-36.

[^51]: *Id.* at 236.

[^52]: *See* 128 [Cong. Rec.]{.smallcaps} 18314-315 (1982) (letter from
    Robert D. Evans, Director, American Bar Association). Mr. Evans
    states, "The Court has materially and adversely affected the
    practice of family law in the United States. More specifically, this
    decision has cast a shadow over untold thousands of final divorce
    decrees in this country." *Id.*

[^53]: *See* Leonard Bierman & John Hershberger, *Federal Preemption of
    State Family Property Law: The Marriage of McCarty and Ridgway*, [14
    Pac. L.J.]{.smallcaps} 27 (1982); Anne Moss, *Women's Pension
    Reform: Congress Inches Toward Equity*, 19 [U. Mich. J.L.
    Reform]{.smallcaps} 165 (1985); Note, *McCarty v. McCarty: A Former
    Spouse's Claim to a Service Member's Military Retired Pay is Shot
    Down*, 13 [Loy. U. Chi. L.J.]{.smallcaps} 555 (1982); Note, *McCarty
    v. McCarty, the Battle Over Military Nondisability Retirement
    Benefits*, 34 [Baylor L. Rev]{.smallcaps}. 335 (1982); Note,
    *Military Retirement Pay Not Subject to Division as Community
    Property Upon Divorce: McCarty v. McCarty*, 19 [Hous. L.
    Rev.]{.smallcaps} 591 (1982); Note, *Federal Law Preempts State
    Treatment of Military Retirement Benefits as Community Property:
    McCarty v. McCarty*, 13 [Tex. Tech. L. Rev.]{.smallcaps} 212 (1982).

[^54]: Fred Barbash, *Justices Rebuff Divorcee on Pension*, [Wash.
    Post]{.smallcaps}, June 27, 1981, at A4; *Military Wives Fight
    Pension Cutoff*, [Ms.,]{.smallcaps} Feb. 1982, at 17; Jane Bryant
    Quinn, *A Housewife's Lot*, [Newsweek]{.smallcaps}, Sept. 14, 1981,
    at 25.

[^55]: As then-Justice Rehnquist stated in his dissent, the majority
    disregarded the preemption standard that the Court had applied and
    had carefully confirmed in *Hisquierdo*. *See supra* note 43 and
    accompanying text.

[^56]: *See, e.g.*, Louise Raggio & Kenneth Raggio, *McCarty v. McCarty:
    The Moving Target of Federal Pre-emption Threatening All
    Non-Employee Spouses*, 13 [St. Mary's L.J.]{.smallcaps} 505 (1982);
    Comment, *The Uniformed Services Former Spouses Protection Act: A
    Partial Return of Power*, 11 [W. St. U. L. Rev]{.smallcaps}. 71
    (1983).

[^57]: McCarty, 453 U.S. at 235-36. The Court recognized "that the
    plight of an ex-spouse of a retired service member is often a
    serious one . . . . Nonetheless, Congress may well decide . . . that
    more protection should be afforded a former spouse of a retired
    service member. This decision, however, is for Congress alone."
    *Id.*

[^58]: The Uniformed Services Former Spouses' Protection Act, Pub. L.
    No. 97-252, tit. X, § 1002(a), 96 Stat. 730 (1982) (codified at 10
    U.S.C. § 1408 (1994 & Supp. IV 1998)).

[^59]: [S. Rep. No]{.smallcaps}. 97-502, at 1 (1982), *reprinted in*
    1982 U.S.C.C.A.N. 1555, 1596.

[^60]: Some critics contend that Congress acted a little too quickly in
    enacting the USFSPA. *See, e.g.*, Comment, *The Uniformed Services
    Former Spouses Protection Act: A Partial Return of Power*, 11 [W.
    St. U. L. Rev]{.smallcaps}. 71 (1983).

[^61]: 10 U.S.C. § 1408(a)(4) (1994).

[^62]: *See id.* § 1408(c)(1).

[^63]: *See* [S. Rep. No]{.smallcaps}. 97-502, at 1, *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1596. *See generally* Charles B. Hochman, *The
    Supreme Court and the Constitutionality of Retroactive Legislation*,
    73 [Harv. L. Rev.]{.smallcaps} 692 (1960) (discussing the
    constitutionality of retroactive legislation).

[^64]: Representative Patricia Schroeder, one of the sponsors of the
    USFSPA, noted that although "state law may allow reopening for
    changed circumstances . . . there is nothing in the bill to require
    it." 128 [Cong. Rec]{.smallcaps}. at 18317 (1982) (statement of Rep.
    Schroeder).

[^65]: [S. Rep. No]{.smallcaps}. 97-502, at 50, *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1633. "Military retired or retainer pay is an
    integral part of the military compensation system. Many, if not
    most, career decisions are made based on individual's perceptions of
    the stability, reliability, and integrity of the retirement system."
    *Id.* Most of these groups suggested a ten-year minimum for the
    duration of the marriage in order for distribution of retirement pay
    to the former spouse. *See* [S. Rep. No]{.smallcaps}. 97-502, at 43,
    *reprinted in* 1982 U.S.C.C.A.N. 1596, 1626-28 (statement of Sen.
    Denton).

[^66]: *See* [Florence W. Kaslow & Richard I. Ridenour, The Military
    Family]{.smallcaps} 217-25 (1984); K.C. [Jacobsen, Retiring from
    Military Service]{.smallcaps} 222-23 (1990).

[^67]: *See* Block, *supra* note 8, at 21 & n.4 (discussing the relative
    value of military and civilian pensions).

[^68]: [S. Rep. No]{.smallcaps}. 97-502, at 7, *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1601-02.

[^69]: Although these representatives testified to this effect at the
    hearings prior to the passage of the USFSPA, it is interesting to
    note that these representatives did not produce anything to
    substantiate their concerns in this respect.

    > The committee notes that until June 26, 1981, a number of State
    > courts traditionally recognized that military retired pay could be
    > dealt with as marital property and divided between the parties . .
    > . . To that end, the committee requested the Department of Defense
    > to furnish objective data, the results of statistically sound
    > surveys, or any other pertinent information which indicated that
    > prior to the *McCarty* decision military personnel management
    > needs were adversely affected by application of State property
    > laws and precedents to military retired pay. The committee also
    > requested similar information on the potential for future
    > management problems if S. 1814 were enacted into law. The
    > Department of Defense has not submitted any satisfactory empirical
    > evidence . . . to show that . . . recruiting, retention and
    > personnel assignment were adversely affect by application of State
    > property laws to military retired pay.

    [S. Rep. No]{.smallcaps}. 97-502, at 7, *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1602.

[^70]: *Id[.]{.smallcaps}* at 52-57, *reprinted in* 1982 U.S.C.C.A.N.
    1596, 1635-40.

[^71]: *See id.* at 55, *reprinted in* 1982 U.S.C.C.A.N. 1596, 1638.

[^72]: *See id.* at 55, *reprinted in* 1982 U.S.C.C.A.N. 1596, 1638
    (citing *In re* Marriage of Luciana, 104 Cal. App. 3d 956, 165 Cal.
    Rptr. 93 (Cal. Ct. App. 1980)).

[^73]: *See id.* at 56, *reprinted in* 1982 U.S.C.C.A.N. 1596, 1639
    (citing Gilmore v. Gilmore, 113 Cal. App. 3d 319, 169 Cal. Rptr. 811
    (1981)).

[^74]: *See id.* at 56, *reprinted in* 1982 U.S.C.C.A.N. 1596, 1639
    (citing Ramsey v. Ramsey, 535 P.2d 53 (Idaho 1975)).

[^75]: *See id.* at 56, *reprinted in* 1982 U.S.C.C.A.N. 1596, 1639
    (citing Miller v. Miller, 609 P.2d 1185 (Mont. 1979)).

[^76]: *See id.* at 8-9, *reprinted in* 1982 U.S.C.C.A.N. 1596, 1603-04.

[^77]: *Id.*

[^78]: 50 U.S.C. app. § 501 (1994 & Supp. IV 1998).

[^79]: [S. Rep. No]{.smallcaps}. 97-502, at 9, *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1604.

[^80]: *See id.*

[^81]: *See id.* at 17, *reprinted in* 1982 U.S.C.C.A.N. 1596, 1612.

[^82]: *Id.*

[^83]: [H.R. Conf. Rep. No]{.smallcaps}. 97-749, at 165 (1982),
    *reprinted in* 1982 U.S.C.C.A.N. 1569, 1570.

    > The purpose of this provision is to place the courts in the same
    > position that they were in on June 26, 1981, the date of the
    > *McCarty* decision, with respect to treatment of non-disability
    > military retired or retainer pay. The provision is intended to
    > remove the federal pre-emption found to exist by the United States
    > Supreme Court and permit State and other courts of competent
    > jurisdiction to apply pertinent State or other laws in determining
    > whether military retired or retainer pay should be divisible.
    > Nothing in this provision requires any division; it leaves that
    > issue up to the courts applying community property, equitable
    > distribution or other principles of marital property determination
    > and distribution. This power is returned to the courts retroactive
    > to June 26, 1981.

    [S. Rep. No]{.smallcaps}. 97-502, at 16, *reprinted in* 1982
    U.S.C.C.A.N. 1569, 1611.

[^84]: 10 U.S.C. § 1408(a)(4), (c)(1) (1994 & Supp. IV 1998).

[^85]: *See id.* § 1408(c)(2).

[^86]: *See id.* § 1408(c)(3).

[^87]: *See id.* § 1408(c)(4).

[^88]: *See* Brown v. Harms, 863 F. Supp. 278 (E. D. Va. 1994) (holding
    that the USFSPA allows courts to apply state divorce laws to
    military pensions, but does not expressly or by implication grant
    the court power to adjudicate any cause nor does it provide
    substantive rules for treatment of military pensions in divorce or
    domestic relations contexts).

[^89]: Although the USFSPA allows courts to distribute retirement pay as
    marital property during a dissolution proceeding, it does not
    determine the amount that is properly distributable to the former
    spouse. There are a number of different ways in which states
    calculate the amount of retirement pay to be distributed to the
    former spouse. *See generally* Captain Mark E. Henderson, *Dividing
    Military Retirement Pay and Disability Pay: A More Equitable
    Approach*, [134 Mil. L. Rev.]{.smallcaps} 87 (1991). For example, in
    Colorado there are three recognized methods of distributing
    retirement pay: net present value, deferred distribution, and
    reserve jurisdiction. TJAGSA Practice Note, *Colorado Reinforces the
    "Time Rule" Formula for Division of Military Pensions*, [Army
    Law]{.smallcaps}., Aug. 1998, at 27.

[^90]: 10 U.S.C. § 1408(c)(1).

[^91]: *Id.* § 1408(a)(6).

[^92]: *See id.* § 1408(a)(4). The entire provisions reads as follows:

    > Total monthly retired or retainer pay to which a member is
    > entitled less amounts which:
    >
    > \(A\) are owed by that member to the United States for previous
    > overpayments of retired pay and for recoupments required by law
    > resulting from entitlement to retired pay;

    \(B\) are deducted from the retired pay of such member as a result
    of forfeitures of retired pay ordered by a court-martial or as a
    result of a waiver of retired pay required by law in order to
    receive compensation under title 5 or title 38;

    > \(C\) 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 retired list); or

    \(D\) are deducted because of an election under chapter 73 of this
    title to provide an annuity to a spouse or former spouse to whom
    payment of a portion of such member's retired pay is being made
    pursuant to a court order under this section.

    *Id.*

[^93]: 10 U.S.C. § 1408(a)(4) (1988), *amended by* the National Defense
    Authorization Act for 1991, Pub. L. No. 101-510, § 555, 104 Stat.
    1569, 1569-70 (1990) (codified as amended at 10 U.S.C. § 1408(c)(1)
    (1994)).

[^94]: 10 U.S.C. § 1408(c)(1) (1988) (emphasis added).

[^95]: Guilford, *supra* note 33 at 47. The author provided an example
    to illustrate how this definition could harm the former spouse.

    > Consider a retiree entitled to \$2000 per month, with a former
    > spouse who has been awarded 50 percent of the retired pay. Under
    > the law of many states, each would receive \$1000. In the simplest
    > case under the Act as originally formulated, however, the
    > disposable retired pay would be \$2000, minus federal income tax
    > withholding. The military finance centers would calculate and
    > report tax withholding as if all the income were taxable to the
    > member. This rule applied because, under federal law, the money is
    > current income for current services, rather than an asset to be
    > divided. Assuming the retiree is in the 15 percent tax bracket and
    > has a second job (and attributing the personal and standard
    > deductions to income from the second job), the disposable pay
    > would be \$1700. Each spouse would get one-half this amount, or
    > \$850. The retiree actually pays taxes on only \$1150, while the
    > former spouse would pay taxes on the remaining \$850. Thus, the
    > retiree receives \$850 each month, plus a tax refund at the end of
    > the year equal to 15 percent times \$850 times 12 months, or
    > \$1530. This works out to a monthly total of \$977.50 (pay plus
    > prorated refund). In the meantime, the former spouse pays taxes
    > (15 percent) on \$850, leaving a net of \$722.50 per month. These
    > numbers simplify the tax calculations, but they do illustrate a
    > key problem with the \"disposable retired pay\" construct. The
    > retiree\'s \"half\" is \$977.50 per month, while the former
    > spouse\'s \"half\" is only \$722.50.

    Guilford, *supra* note 33, at 47 n.13.

[^96]: *See, e.g.,* Martin v. Martin, 373 S.E.2d 706 (S.C. 1988); Grier
    v. Grier, 731 S.W.2d 936 (Tex. 1987); White v. White, 734 P.2d 1283
    (N.M. Ct. App. 1987); Casas v. Thompson, 720 P.2d 921 (Cal. 1986);
    Lewis v. Lewis, 350 S.E.2d 587 (N.C. Ct. App. 1986); Deliduka v.
    Deliduka, 347 N.W.2d 52 (Minn. Ct. App. 1984); Bullock v. Bullock,
    354 N.W.2d 904 (N.D. 1984); Butcher v. Butcher, 357 S.E.2d 226
    (W.Va. 1987).

[^97]: 490 U.S. 581 (1989). For a discussion of the facts of *Mansell,*
    see *infra* notes 164-77 and accompanying text.

[^98]: The *Mansell* Court addressed whether state courts could divide
    retirement pay waived by the retiree in order to receive disability
    benefits. *Id.* at 594-95.

[^99]: *See id.* at 588-92.

[^100]: *See id.* at 589.

[^101]: National Defense Authorization Act for 1991, Pub. L. No.
    101-510, § 555, 104 Stat. 1569, 1569-70 (1990) (amending 10 U.S.C. §
    1408(a)(4) (1988)).

[^102]: The amendment also limited the types of deductible indebtedness
    payments to the government. Only indebtedness arising from
    overpayments of retired pay is deductible. *Id.* This prevents a
    retiree from using retired pay deductions for tax indebtedness to
    offset a portion of a former spouse\'s share of retired pay. It also
    eliminates the deductibility of court-martial fines.

[^103]: *See* TJAGSA Practice Note *Military Retirement Pay -- Property
    or Income?,* [Army Law.]{.smallcaps}, June 1997, at 42.

[^104]: *See* Cook v. Cook, 560 N.W.2d 246, 249-50 (Wis. 1997).

[^105]: *See In re* Klomps, 676 N.E.2d 686 (Ill. App. Ct. 1997); Cook,
    560 N.W.2d at 246.

[^106]: In *Klomps*, the court awarded Mrs. Klomps 35 percent of
    disposable retired pay after eighteen years of marriage. Klomps, 676
    N.E.2d at 687. In *Cook*, the court awarded Mrs. Cook 50 percent of
    disposable retired pay after twelve years of marriage. Cook, 560
    N.W.2d at 248.

[^107]: Klomps, 676 N.E.2d at 690; Cook, 560 N.W.2d at 254.

[^108]: *See* TJAGSA Practice Notes, *When is Property Not Really
    Property?,* [Army Law]{.smallcaps}., Sept. 1995, at 28.

[^109]: 10 U.S.C. § 1408(c)(2) (1994).

[^110]: [S. Rep. No]{.smallcaps}. 97-502, at 16, *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1611.

[^111]: 10 U.S.C. § 1408(c)(2). *See also* Department of Defense
    Financial Management Regulation*, Military Pay Policy and
    Procedures - Retired Pay*, vol. 7B, ch. 29 (Sept. 1999)
    \[hereinafter DoD Financial Management Regulation\].

[^112]: [S. Rep. No]{.smallcaps}. 97-502, at 16-17, *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1611-12.

[^113]: *See, e.g.,* *In re* Luciano, 104 Cal. App. 3d 956, 164 Cal.
    Rptr. 93 (Cal. Ct. App. 1980) (member of the armed forces); Koelsch
    v. Koelsch, 713 P.2d 1234 (Ariz. 1986) (policeman); *In re*
    Gillmore, 629 P.2d 1 (Cal. 1981) (civilian pension); Wallace v.
    Wallace, 677 P.2d 966 (Haw. Ct. App. 1984) (Public Health Service
    employee); Gemma v. Gemma, 778 P.2d 429 (Nev. 1989) (policeman).
    *But see* Morlan v. Morlan, 720 P.2d 497, 498 (Alaska 1986) (holding
    that instead of ordering the employee to retire in order to protect
    the former spouse\'s interest in a union pension, the trial court
    should have given the employed spouse the option of continuing
    working and paying the spouse her share of the pension benefits he
    would have received); Mattox v. Mattox, 734 P.2d 259 (N.M. Ct. App.
    1987) (affirming the use of the employee\'s retirement eligibility
    date, as opposed to a later projected retirement date, in
    calculating the current value of the pension).

[^114]: The time value of money is one of the key reasons that the value
    of the spouse\'s interest in the retired pay benefit shrinks. That
    is, \$500 per month, with payments beginning immediately, may be
    worth more than a \$600 benefit that will not start for five or ten
    years. The increased monthly income in the future may not adequately
    compensate for the lost use of the lesser amount over a period of
    years.

[^115]: 10 U.S.C. § 1408(c)(3) (1994 & Supp. IV 1998).

[^116]: *See In re* Luciano, 104 Cal. App. 3d 956, 164 Cal. Rptr. 93
    (member of the armed forces); *In re* Gillmore, 629 P.2d 1 (civilian
    pension).

[^117]: *See* Luciano, 104 Cal. App. 3d at 960-61, 164 Cal. Rptr. at
    95-96; Gillmore, 629 P.2d at 6. Alternatively, in Arizona one court
    held that the former spouse must begin receiving his or her share
    when the employed spouse becomes retirement eligible---without an
    opportunity to elect a different time to begin receiving the
    benefit. Koelsch, 713 P.2d at 1238-44.

[^118]: *See* Luciano, 104 Cal. App. 3d at 960-61, 164 Cal. Rptr. at
    95-96; Gillmore, 629 P.2d at 6.

[^119]: Before placing within the Act the limitations on jurisdiction,
    Congress heard arguments of officials from the Department of
    Defense. These witnesses argued strongly for retention of the
    separate property concept of retired military pay. They further
    contended there was a need to prevent the possibility of forum
    shopping by the spouses. *See* [S. Rep. No]{.smallcaps}. 97-502, at
    6 (1982), *reprinted in* 1982 U.S.C.C.A.N. 1596, 1601-04.

[^120]: 10 U.S.C. § 1408(c)(4) (1994). The USFSPA defines the term
    *court* to include:

    > \(A\) any court of competent jurisdiction of any State, the
    > District of Columbia, the Commonwealth of Puerto Rico, Guam,
    > American Samoa, the Virgin Islands, the Northern Mariana Islands,
    > and the Trust Territory of the Pacific Islands; (B) any court of
    > the United States (as defined in section 451 of title 28) having
    > competent jurisdiction; and (C) any court of competent
    > jurisdiction of a foreign country with which the United States has
    > an agreement requiring the United States to honor any court order
    > of such country.

    *Id.* at § 1408(a)(1).

[^121]: *See id.* § 1408(c)(4). These limits apparently reflect a
    concern that military pensioners could be substantially
    disadvantaged by forum-shopping spouses who otherwise might seek to
    divide these property interests in a state never having had
    substantial contact with the military pension and whose courts are
    not easily accessible because of distance. *See* *generally* [S.
    Rep. No]{.smallcaps}. 97-502, at 8-9, *reprinted in* 1982
    U.S.C.C.A.N. 1596, 1603-04.

[^122]: Southern v. Glenn, 677 S.W.2d 576, 583 (Tex. 1984). The minimum
    contacts test provides that an out-of-state defendant is subject to
    the jurisdiction of the court provided, (1) the nonresident
    defendant must purposely do some act or consummate some transaction
    in the forum state; (2) the cause of action between plaintiff and
    defendant must arise out of that transaction; and (3) the assumption
    of jurisdiction by the forum state must not offend traditional
    notions of fair play and substantial justice under the due process
    clause of the Fourteenth Amendment, bearing in mind the quality,
    nature and extent of the activity in the forum state, the relative
    convenience of the parties, the benefits and protection of the laws
    of the forum state afforded by the respective parties, and the basic
    equities of the situation. *Id.* at 582 (referencing Helicopteros
    Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984); Kulko v.
    California Superior Court, 436 U.S. 84 (1978)).

[^123]: *See, e.g.*, Lewis v. Lewis, 695 F. Supp. 1089 (Nev. 1988); *In
    re* Marriage of Jacobson, 161 Cal. App. 3d 465, 207 Cal. Rptr. 512
    (Cal. Ct. App. 1984); Seeley v. Seeley, 690 S.W.2d 626 (Tex. Ct.
    App. 1985); *In re* Marriage of Kildea, 420 N.W.2d 391 (Wis. Ct.
    App. 1988).

[^124]: *See, e.g.*, Kildea, 420 N.W.2d at 393-94.

[^125]: *Id.*

[^126]: *See, e.g.,* Tarvin v. Tarvin, 187 Cal. App. 3d 56, 232 Cal.
    Rptr. 13 (1986). *See also* Carmody v. Secretary of the Navy, 886
    F.2d 678, 681 (4th Cir. 1989) (holding that an order dividing
    military retired pay that resulted from a new partition action,
    unrelated to the original divorce decree, does not qualify as a
    court order for purposes of seeking direct payment of the spousal
    share).

[^127]: Pub. L. No. 101-510, § 555, 104 Stat. 1485, 1569 (1990)
    (codified at 10 U.S.C. § 1408(c)(1) (1994)). In spite of this
    provision in the USFSPA, some courts have held that a retiree's
    waiver of retired pay in order to receive VA benefits justifies
    reopening a property division. Torwich v. Torwich, 660 A.2d 1214
    (N.J. App. Div. 1995); Clausen v. Clausen, 831 P.2d 1257 (Alaska
    1992).

[^128]: 10 U.S.C. § 1408(c)(1).

[^129]: [H.R. Conf. Rep. No.]{.smallcaps} 101-923, at 609 (1990),
    *reprinted in* 1990 U.S.C.C.A.N. 3110, 3166 (stating that if a court
    issued a final decree before *McCarty* and did not treat retired pay
    as the property of both spouses, it may not subsequent to *McCarty*,
    modify the decree to do so). A related Code of Federal Regulations
    provision states in pertinent part that:

    > A modification on or after June 26, 1981, of a court order that
    > originally awarded a division of retired pay as property before
    > June 26, 1981, may be honored for subsequent court-ordered changes
    > made for clarification, such as the interpretation of a
    > computation formula in the original court order. For court orders
    > issued before June 26, 1981, subsequent amendments after that date
    > to provide for a division of retired pay as property are
    > unenforceable under this part.

    32 C.F.R. § 63.6(c)(7) (1999)*.*

[^130]: 962 F. Supp. 931 (W.D. La. 1997).

[^131]: *See id.* at 934. Section 1408(c)(4) states:

    > A court may not treat the disposable retirement pay of a member in
    > the manner described in paragraph (1) unless the court has
    > jurisdiction over the member by reason of (A) his residence, other
    > than because of military assignment, in the territorial
    > jurisdiction of the court; (B) his domicile in the territorial
    > jurisdiction of the court; or (C) his consent to the jurisdiction
    > of the court.

    10 U.S.C. § 1408(c)(4).

[^132]: Delrie, 962 F. Supp. at 935. Section 1408(c)(1) states:

    > Subject to the limitations of this section, a court may treat
    > disposable retired pay payable to a member for pay periods
    > beginning after 25 June 1981, either as property solely of the
    > member or as property of the member and his spouse in accordance
    > with the law of the jurisdiction of such court. A court may not
    > treat retired pay as property in any proceeding to divide or
    > partition any amount of retired pay of a member as the property of
    > the member and the member\'s spouse or former spouse if a final
    > decree of divorce, dissolution, annulment, or legal separation
    > (including a court ordered, ratified, or approved property
    > settlement incident to such decree) affecting the member and the
    > member\'s spouse or former spouse (A) was issued before June 25,
    > 1981, and (B) did not treat (or reserve jurisdiction to treat) any
    > amount of retired pay of the member as property of the member and
    > the member\'s spouse or former spouse.

    10 U.S.C. § 1408(c)(1).

[^133]: Delrie, 962 F. Supp. at 932.

[^134]: Mrs. Harris changed her last name to Delrie after the divorce.

[^135]: Delrie, 962 F. Supp. at 932*.*

[^136]: *See id.* at 933.

[^137]: *See id.* at 934.

[^138]: *See id.* At the time of the petition for partition of military
    retirement benefits, Mr. Harris resided in Oklahoma.

[^139]: *See id.*

[^140]: *See id.* Were the rule otherwise, a party to a marital
    dissolution proceeding could attempt to divest the court of the
    power to modify its own judgment by moving out of the forum and
    purporting to withdraw a previous consent to jurisdiction. For
    example, in a case where a judgment was entered, where neither party
    filed a timely notice of appeal, and where one party committed fraud
    in obtaining the judgment, a later motion to modify or vacate the
    judgment brought on the ground of fraud might be opposed on the
    theory that the court was without personal jurisdiction to consider
    the motion if the fraudulent party had the foresight to leave the
    forum after the judgment became final.

[^141]: *See id.* at 934-35.

[^142]: 10 U.S.C. § 1408(c)(1).

[^143]: Delrie, 962 F. Supp. at 935.

[^144]: *See id.*

[^145]: Louisiana state courts are split on this issue, as the *Delrie*
    court noted when it cited *Meche v. Meche*, 635 So. 2d 614 (La. Ct.
    App. 1994). In *Meche*, a Louisiana circuit court of appeals adopted
    the same interpretation of the statute as argued by Mrs. Delrie.
    *Id.* at 616.

[^146]: Delrie, 962 F. Supp. at 935.

[^147]: *See id.*

[^148]: 10 U.S.C. § 1212 (1994); *see also* [R. Roberts, The Veterans
    Guide to Benefits]{.smallcaps} 129-64 (1989).

[^149]: 10 U.S.C. § 1221. The formulas for computing the amount of
    disability retired pay are contained in 10 U.S.C. § 1212. Basically,
    the retiree multiplies his years of service by twice his monthly
    base pay computed at various times depending on whether the retiree
    was placed on the temporary disability retired list, separated in
    lieu of being placed on the list, or failed to be promoted because
    of his placement on the list. *Id.* § 1212.

[^150]: 10 U.S.C. § 1201(b) (1994 & Supp. IV 1998). The entire provision
    provides the following requirements for eligibility:

    > Determinations referred to in subsection (a) are determinations by
    > the Secretary that\-- (1) based upon accepted medical principles,
    > the disability is of a permanent nature and stable; (2) the
    > disability is not the result of the member\'s intentional
    > misconduct or willful neglect, and was not incurred during a
    > period of unauthorized absence; and (3) either\-- (A) the member
    > has at least 20 years of service computed under section 1208 of
    > this title; or (B) the disability is at least 30 percent under the
    > standard schedule of rating disabilities in use by the Department
    > of Veterans Affairs at the time of the determination; and
    > either\-- (i) the member has at least eight years of service
    > computed under section 1208 of this title; (ii) the disability is
    > the proximate result of performing active duty; (iii) the
    > disability was incurred in line of duty in time of war or national
    > emergency; or (iv) the disability was incurred in line of duty
    > after September 14, 1978.

    *Id.*

[^151]: 38 U.S.C. § 5301 (1994 & Supp. IV 1998).

[^152]: *See id.*

[^153]: Pub. L. No. 97-252, § 1002, 96 Stat. 730 (1982) (codified as
    amended at 10 U.S.C. § 1408(a)(4) (1994)).

[^154]: *See* *supra* note 95 and accompanying text.

[^155]: Some courts used this prohibition to award other marital assets
    to the former spouse. *See, e.g.,* Clauson v. Clauson, 831 P.2d
    1257, 1258 (Alaska 1992) (holding that USFSPA does not preclude
    courts from considering military disability benefits received in
    lieu of waived retirement pay when making equitable division of
    marital assets).

[^156]: Pub. L. No. 99-661, § 644(a), 100 Stat. 3816, 3887 (1986)
    (codified as amended at 10 U.S.C. § 1408(a)(4) (1994)).

[^157]: Congress deleted a portion of the introductory paragraph in 10
    U.S.C.S. § 1408(a)(4), which read "(other than the retired pay of a
    member retired for disability under chapter 61 of this title)." 10
    U.S.C. § 1408(a)(4) (1982), *amended by* 10 U.S.C. § 1408(a)(4)
    (Supp. IV 1987). Thus, prior to this amendment, section 1408(a)(4)
    read as follows: "the term 'disposable retired pay' means the total
    monthly retired pay to which a member is entitled (other than the
    retired pay of a member retired for disability under chapter 61 of
    this title) less amounts which . . . ." *Id.* However, Congress
    retained the exception for disability pay delineated further in the
    definition of disposable retired pay, which uses the percentage of
    disability to determine the amount considered as disposable retired
    pay. *See* 10 U.S.C. § 1408(a)(4)(C) (1994). It was a previous form
    of this exception contained in section 1408(a)(4)(C) that the
    Supreme Court relied upon in the *Mansell* decision. Mansell v.
    Mansell, 490 U.S. 581, 589 (1989).

[^158]: 38 U.S.C. § 1110 (1994).

[^159]: *See id.* § 5304. *See also* TJAGSA Practice Notes, *Uniformed
    Services Former Spouses' Protection Act and Veterans' Disability and
    Dual Compensation Act Awards*, [Army Law.,]{.smallcaps} Feb. 1998,
    at 31 \[hereinafter TJAGSA Practice Notes, *Former Spouses'
    Protection Act*\].

[^160]: 38 U.S.C. § 5301 (1994 & Supp. IV 1998).

[^161]: *See, e.g., In re* Daniels, 186 Cal. App. 3d 1084, 1089, 231
    Cal. Rptr. 169, 171 (Cal. Ct. App. 1986) (court ruled that they
    could divide the waived retired pay when a military retiree elected
    to receive VA payments); Casas v. Thompson, 720 P.2d 921, 923 (Cal.
    1986) (holding that Congress had not intended the Act\'s disposable
    retired pay language to limit the application of state law in
    divisions of military retired pay).

[^162]: 490 U.S. 581 (1989).

[^163]: *See id.* at 594-95.

[^164]: *See id.* at 592.

[^165]: *See id.* at 585 (Major Mansell had executed a waiver of a
    portion of his retirement pay in order to receive disability pay).

[^166]: *See id.* at 585-86.

[^167]: *See id.* at 586-87.

[^168]: 10 U.S.C. § 1408(a)(4)(B).

[^169]: Mansell, 490 U.S. at 588. For the full text of the provision,
    see *supra* note 89 and accompanying text. The Court focused on the
    portion of this section dealing with the term *disposable retired
    pay*. Disposable retired pay is defined in 10 U.S.C. § 1408(a)(4).
    When the Court decided *Mansell,* this section read as follows:

    > \"Disposable retired or retainer pay\" means the total monthly
    > retired or retainer pay to which a member is entitled less amounts
    > which \-- (A) are owed by that member to the United States; (B)
    > are required by law to be and are deducted from the retired or
    > retainer pay of such member, including fines and forfeitures
    > ordered by courts-martial, Federal employment taxes, and amounts
    > waived in order to receive compensation under title 5 or title 38;
    > (C) are properly withheld for Federal, State, or local income tax
    > purposes, if the withholding of such amounts is authorized or
    > required by law and to the extent such amounts withheld are not
    > greater than would be authorized if such member claimed all
    > dependents to which he is entitled. (D) are withheld under section
    > 3402(i) of the Internal Revenue Code of 1986 (26 U.S.C. 3402(i))
    > if such member presents evidence of a tax obligation which
    > supports such withholding; (E) 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 retired list); or (F) are
    > deducted because of an election under chapter 73 of this title
    > \[10 U.S.C. §§ 1431-1452\] to provide an annuity to a spouse or
    > former spouse to whom payment of a portion of such member\'s
    > retired or retainer pay is being made pursuant to a court order
    > under this section.

    10 U.S.C. § 1408(a)(4) (1982 & Supp. IV 1987) (amended by 10 U.S.C.
    § 1408(a)(4) (1988 & Supp. II 1990). After Congress amended section
    1408(a)(4) in 1990, the section read:

    > \"Disposable retired pay\" means the total monthly retired pay to
    > which a member is entitled less amounts which \-- (A) are owed by
    > that member to the United States for previous over-payments of
    > retired pay and for recoupments required by law resulting from
    > entitlement to retired pay; (B) are deducted from the retired pay
    > of such member as a result of forfeitures of retired pay ordered
    > by a court-martial or as a result of a waiver of retired pay
    > required by law in order to receive compensation under title 5 or
    > title 38; (C) 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 retired list); or (D) are deducted because of
    > an election under chapter 73 of this title \[10 U.S.C. §§
    > 1431-1452\] to provide an annuity to a spouse or former spouse to
    > whom payment of a portion of such member\'s retired or retainer
    > pay is being made pursuant to a court order under this section.

    National Defense Authorization Act for 1991, Pub. L. No. 101-510, §
    555, 104 Stat. 1485, 1568-70 (1990) (codified at 10 U.S.C. §
    1408(a)(4) (1994)).

[^170]: Mansell*,* 490 U.S. at 588.

[^171]: *Id.* at 589.

[^172]: *See id.* at 592.

[^173]: *See id.* at 592-93.

[^174]: *See id.* at 594.

[^175]: *See id.*

[^176]: *Id*.

[^177]: *See id.* at 603 (O'Connor, J., dissenting).

[^178]: *See id.* (O'Connor, J., dissenting).

[^179]: 699 So. 2d 235 (Fla. 1997).

[^180]: *See id.* at 237.

[^181]: *Id.*

[^182]: 10 U.S.C. § 1175 (1994). VSI is a temporary program to provide a
    financial incentive for service members to leave the service earlier
    than their scheduled end of term of service to assist with the
    downsizing of the military. *See* *infra* notes 232-37 and
    accompanying text.

[^183]: *See* Abernethy*,* 699 So. 2d at 237. Florida treats VSI and SSB
    payments as retirement pay. *Id.* at 237 n.5. Therefore, the court
    found that the VSI benefits were the functional equivalent of
    military retirement and were thus covered by the USFSPA *Id.*

[^184]: 10 U.S.C. § 1175(e)(4).

[^185]: *See* Abernethy, 699 So. 2d at 237.

[^186]: *See id.*

[^187]: *See id.* at 238.

[^188]: *See id.*

[^189]: *See id.*

[^190]: *See id.* at 240.

[^191]: *See id.* at 237.

[^192]: *See* *id.* at 240.

[^193]: *See id.*

[^194]: *See id.*

[^195]: 10 U.S.C. § 1408(d)(1) (1994 & Supp. IV 1998).

[^196]: Guidelines used by the respective services to implement these
    direct payments are found in DoD Financial Management Regulation*,
    supra* note 110, vol. 7B, ch. 29. Garnishment procedures are found
    in DoD Financial Management Regulation*, supra* note 110, vol. 7B,
    ch. 27.

[^197]: 10 U.S.C. § 1408(a)(2).

[^198]: *See id.*

[^199]: *See id.*

[^200]: Department of Defense Authorization Act for 1997, Pub. L. No.
    104-201, § 636, 110 Stat. 2503 (1997). *See also* TJAGSA Practice
    Note, *National Defense Authorization Act for Fiscal Year 1997
    Affects Aspects of Uniformed Services Former Spouses' Protection
    Act*, [Army Law.,]{.smallcaps} Dec. 1996, at 20 \[hereinafter TJAGSA
    Practice Note, *National Defense Authorization Act*\].

[^201]: 10 U.S.C. § 1408(d).

[^202]: *Id.* § 1408(a)(2)(C). Direct payments in most instances may not
    exceed fifty percent of the member's disposable retirement pay.

[^203]: *Id.* § 1408(b)(1)(A).

[^204]: *Id.* § 1408(d)(1).

[^205]: *Id.* § 1408(d)(2). *See also infra* note 320 (discussion of
    confusion this 10/10 rule has produced for eligibility of benefits).

[^206]: 10 U.S.C. § 1408(d)(2).

[^207]: *See id.* § 1408(e)(1). State courts are split on whether this
    limitation also limits state court authority in making awards of
    military retirement pay. *Compare* Beesley v. Beesley, 758 P.2d 695
    (Idaho 1988), *and* Bullock v. Bullock, 354 N.W.2d 904 (N.D. 1984),
    *and* Deliduka v. Deliduka, 347 N.W.2d 52 (Minn. Ct. App. 1984),
    *with In re* Marriage of Smith, 669 P.2d 448 (Wash. 1983). The
    bankruptcy court deciding *In re* *MacMeeken*, 117 B.R. 642 (D.
    Kansas 1990), provided a thorough legislative analysis and concluded
    that section 1408 did not preclude a court from awarding more that
    50 percent of retirement pay to the former spouse.

[^208]: 42 U.S.C. § 659 (1994 & Supp. IV 1998). This statute provides
    for the processing of garnishment orders for child support and/or
    alimony from any payment to individuals from the United States.
    *Id*. § 659(a).

[^209]: 10 U.S.C. § 1408(e)(4)(B).

[^210]: *See id.* § 1408(d)(4).

[^211]: *See id.* § 1408(e)(5).

[^212]: *See id.* § 1408(c)(1). The CFR for this provision states in
    pertinent part that:

    > A modification on or after June 26, 1981, of a court order that
    > originally awarded a division of retired pay as property before
    > June 26, 1981, may be honored for subsequent court-ordered changes
    > made for clarification, such as the interpretation of a
    > computation formula in the original court order. For court orders
    > issued before June 26, 1981, subsequent amendments after that date
    > to provide for a division of retired pay as property are
    > unenforceable under this part.
    >
    > 32 C.F.R. § 63.6(c)(7) (1999).

[^213]: Pub. L. No. 101-510, §§ 555(a)--(d), (f), (g), 104 Stat. 1569,
    1570 (1990) (codified at 10 U.S.C. § 1408(d)(7)(A) (1994 & Supp. IV
    1998)).

[^214]: *See id.*

[^215]: Pub. L. No. 92-425, 86 Stat. 706 (1972) (codified at 10 U.S.C.
    §§ 1447-1455 (1988)).

[^216]: *See* 10 U.S.C. §§ 1447-1455 (1994 & Supp. IV 1998). Guidelines
    used by the respective services to implement the SBP are found in
    DoD Financial Management Regulation*, supra* note 110, vol. 7B, chs.
    42-52. Air Force guidelines are found in Air Force Instruction
    36-3006, Survivor Benefit Plan (SBP) and Supplemental Survivor
    Benefit Plan (SSBP) (July 1, 1996) \[hereinafter AFI 36-3006\].

[^217]: Although participation is voluntary, there are a number of
    compelling reasons, such as government subsidization of the coverage
    and tax-free premiums, why a member would enroll in the SBP. *See*
    Lew Tolleson, *Think Twice Before Bailing Out of SBP,* [The Retired
    Officer Mag.]{.smallcaps} (May 1998).

[^218]: 10 U.S.C. § 1448(a).

[^219]: *See id.*

[^220]: The cost is determined by looking to the level of retired pay,
    or base amount, which the member chooses, upon which the Defense
    Finance and Accounting Service computes monthly premium and annuity
    amounts. The maximum base amount allowed is full retired pay; the
    minimum is \$300. The SBP base amount must be full retired pay when
    SSBP is elected. When DFAS computes the monthly premium they also
    look to the type of beneficiary and the age of the member. *See* AFI
    36-3006, *supra* note 215, atch. 3.

[^221]: 10 U.S.C. § 1451(a)(1).

[^222]: *See id.*

[^223]: *See id.* § 1450(b)(2).

[^224]: *See id.* § 1450(b)(3).

[^225]: *See* 10 U.S.C. § 1450 (Supp. II 1972), *amended by* 10 U.S.C. §
    1450 (1994 & Supp. IV 1998).

[^226]: *See generally* [S. Rep. No. 97-502]{.smallcaps}, at 5 (1982),
    *reprinted in* 1982 U.S.C.C.A.N. 1596, 1599.

[^227]: Pub. L. No. 97-252, tit. X, § 1003(b), 96 Stat. 718, 735 (1982)
    (codified at 10 U.S.C. § 1448(b)(2) (1994 & Supp. IV 1998)).

[^228]: Pub. L. No. 98-94, tit. IX, pt. D, § 941(a)(1), (2), (c)(2), 97
    Stat. 653 (1983) (codified at 10 U.S.C. § 1450(b) (1994 & Supp. IV
    1998)).

[^229]: This amendment was enacted to relieve the restriction imposed by
    the USFSPA where a member could only elect to provide an annuity for
    a former spouse if he had a former spouse at the time he became
    eligible to participate in the benefit plan. *See* [S. Rep. No.
    98-174]{.smallcaps}, at 255 (1983), *reprinted in* 1983 U.S.C.C.A.N.
    1145, 1152.

    > The primary purpose of these technical amendments is to clarify
    > the authority of individuals electing to participate in the Plan
    > before the effective date of the Uniformed Services Former
    > Spouses' Protection Act to designate their former spouses as Plan
    > beneficiaries. For example, the amendments made it clear that a
    > member who elected into the Plan by designating his spouse in 1975
    > and divorced that spouse in 1980 could now elect to designate his
    > former spouse as a beneficiary under the Plan. He would have to
    > make that election within one year after enactment of this Act.

    *Id.* Guidelines used by the respective services to implement
    elections are found in DoD Financial Management Regulation*, supra*
    note 110, vol. 7B, ch. 43.

[^230]: Pub. L. No. 104-201, § 634, 110 Stat. 2561 (1996) (codified at
    10 U.S.C. § 1450(f)(3) (Supp. IV 1998)).

[^231]: 10 U.S.C. § 1450(f)(3)(A). Under section 1450(f)(3)(A), the
    basic requirement for a deemed election is a court-approved
    agreement between the parties providing that the member or retiree
    will designate the former spouse as the SBP beneficiary.
    Alternatively, the automatic election will be made if a court simply
    orders the member or retiree to make the designation, whether or not
    an agreement exists between the parties. Such an order may be
    incident to the divorce decree, or it may be issued at a later date.
    *Id. Court-approved* is a broad term. It includes an agreement that
    has been incorporated, adopted, ratified, or approved in a court
    order. *Id.* § 1447. It also includes an agreement that simply has
    been filed with a court pursuant to state law. *Id.*

[^232]: *See* 10 U.S.C. § 1448(b). As amended, this section provides:

    > (3)(A) A person--
    >
    > \(i\) who is a participant in the Plan and is providing coverage
    > for a spouse . . . and (ii) who has a former spouse who was not
    > that person\'s former spouse when he became eligible to
    > participate in the Plan, may . . . elect to provide an annuity to
    > that former spouse. Any such election terminates any previous
    > coverage under the Plan and must be written, signed by the person,
    > and received by the Secretary concerned within one year after the
    > date of the decree of divorce, dissolution, or annulment.
    >
    > \(B\) An election under this paragraph may not be revoked except
    > in accordance with section 1450(f) of this title and is effective
    > as of the first day of the first calendar month following the
    > month in which it is received by the Secretary concerned.
    >
    > \(4\) A person who elects to provide an annuity to a former spouse
    > under paragraph (2) or (3) shall, at the time of making the
    > election, provide the Secretary concerned with a written statement
    > (in a form to be prescribed by that Secretary and signed by such
    > person and the former spouse) setting forth whether the election
    > is being made pursuant to a written agreement previously entered
    > into voluntarily by such person as a part of or incident to a
    > proceeding of divorce, dissolution, or annulment and (if so)
    > whether such voluntary written agreement has been incorporated in,
    > or ratified or approved by a court order.

    *Id*. The importance of ensuring that a Survivor Benefit Plan
    provision is included in the final judgment entered by the court
    cannot be overemphasized. If a former spouse fails to ensure that a
    court order exists which requires the member to make an election for
    the former spouse or fails to send a copy of this court order to
    DFAS, the former spouse can lose his or her benefits under the SBP.
    *See generally*, TJAGSA Practice Notes, *Drafting a Separation
    Agreement? Don't Forget the Survivor Benefit Plan!,* [Army
    Law]{.smallcaps}., Dec. 1995, at 71-72.

[^233]: [H.R. Conf. Rep. No.]{.smallcaps} 102-311, at 555-56 (1991),
    *reprinted in* 1991 U.S.C.C.A.N. 1042, 1112-13. *See also* Elzie v.
    Aspin, 841 F. Supp. 439, 440 (D.D.C. 1993) (explaining that the SSB
    and VSI programs were designed to reduce the size of the armed
    forces in keeping with a perceived diminished threat to the United
    States\' interests posed by the new world order).

[^234]: 10 U.S.C. § 1174 (1994 & Supp. IV 1998). The SSB program
    entitles a service member with over six years but less then twenty
    years active duty service to a one-time lump-sum payment determined
    by 10 percent of the product of years of service and twelve times
    the monthly basic pay at the time of release from active duty. *See
    id.* § 1174(d)(1).

[^235]: 10 U.S.C. § 1175. The VSI is an annual payment to the service
    member with over six years but less then twenty years active duty
    service based on 2.5 percent of the monthly basic pay that was
    received at the time of transfer to the reserve component multiplied
    by twelve and multiplied again by the number of years of service.
    The service member receives the annuity for twice the number of
    years of service. *See id.*

[^236]: *See* 10 U.S.C. §§ 1174a(b), (e)(3), 1175(c).

[^237]: [H.R. Conf. Rep. No.]{.smallcaps} 102-311, at 555-57 (1991),
    *reprinted in* 1991 U.S.C.C.A.N. 1042, 1111-13.

[^238]: 10 U.S.C. §§ 1174a(b), 1175(e)(1).

[^239]: *See generally* Marsh v. Wallace, 924 S.W.2d 423 (Tex. App.
    1996); Kelson v. Kelson, 675 So. 2d 1370 (Fla. 1996) (finding VSI
    benefits to be the "functional equivalent of . . . retired pay" and
    therefore their division is not precluded by federal law); *In re*
    Marriage of Heupel, 936 P.2d 561 (Colo. 1997) (if VSI or SSB
    benefits were intended to compensate for lost future income, they
    would not be subject to recoupment from retired pay); In re Babutta,
    66 Cal. App. 4th 784, 78 Cal. Rptr. 281 (Cal. Ct. App. 1998) (SSB
    and VSI benefits are analogous to retired pay and are compensation
    for services already rendered); Fisher v. Fisher, 462 S.E.2d 303
    (S.C. Ct. App. 1995) (rejecting the husband\'s argument that the
    court lacked subject matter jurisdiction to modify the original
    property division when the husband elected to receive VSI benefits
    in lieu of retired pay because the retired pay provisions of the
    parties' separation agreement applied); *In re* Crawford, 884 P.2d
    210 (Ariz. Ct. App. 1994) (whether SSB payment represents retirement
    proceeds or a payment in lieu of retirement benefits, some portion
    of it is attributable to retirement funds); Blair v. Blair, 894 P.2d
    958 (Mont. 1995) (election of special separation benefits is an
    election of early retirement); Kulscar v. Kulscar, 896 P.2d 1206
    (Okla. 1995) (dissolution decree awarding wife a portion of
    husband\'s military retirement benefits and predating enactment of
    SSB program enforced against husband\'s special separation
    benefits); and *In re* Marriage of McElroy, 905 P.2d 1016 (Colo. Ct.
    App. 1995) (marital settlement agreement providing for division of
    husband\'s "gross military retirement/pension benefits" and
    predating enactment of SSB program enforced against husband's
    special separation benefits).

[^240]: 924 S.W. 2d 423, 427 (Tex. App. 1996).

[^241]: *See id.* at 427.

[^242]: *See id.* at 424.

[^243]: *See id.*

[^244]: *See id.*

[^245]: *See* 10 U.S.C. § 1174a(b)(2).

[^246]: Marsh, 924 S.W.2d at 424.

[^247]: *See id.* at 424--25.

[^248]: *Id.* at 426 (emphasis in original).

[^249]: *Id.* (citing [H.R. Rep. No]{.smallcaps}. 101-665, at 20 (1990),
    *reprinted in* 1990 U.S.C.C.A.N. 2931, 2962).

[^250]: *Id.*

[^251]: *See id.*

[^252]: *See id.*

[^253]: *See id.*

[^254]: *Id.* The analysis used by the court in *Marsh*, that SSB
    payments are basically an advance on retirement, was also used by
    the Montana Supreme Court in *Blair v. Blair*, 894 P.2d 958, (Mont.
    1995):

    > Like retirement, \[the husband's\] eligibility for the SSB program
    > was based on the number of years he served in active duty. As with
    > retirement pay, \[his\] separation pay was calculated according to
    > the number of years he was in active service. \[He\] could have
    > remained on active duty for five more years and received
    > retirement pay. Instead, he chose voluntary separation from the
    > military and received his compensation at an earlier date. For the
    > reasons we have stated, we characterize separation pay received
    > under the Special Separation Benefits program, as an election for
    > early retirement.
    >
    > Blair, 894 P.2d at 961-62.

[^255]: Marsh, 924 S.W.2d at 426-27.

[^256]: 675 So. 2d 1370 (Fla. 1996).

[^257]: *See id.*

[^258]: *See id.*

[^259]: *See id.* at 1371.

[^260]: *See id.*

[^261]: *See id.* at 1370.

[^262]: *See id.* at 1372.

[^263]: *See id.*

[^264]: *See id.*

[^265]: No. 97-26, 1997 Pa. LEXIS 2835 (Dec. 23, 1997).

[^266]: *See* McClure v. McClure, 647 N.E.2d 832 (Ohio Ct. App. 1994)
    (holding VSI payments are separate property of the service member).

[^267]: Horner, 1997 Pa. LEXIS 2835, at \*1.

[^268]: *See id.* at \*1.

[^269]: *See id.* at \*2.

[^270]: *See id.* at \*3-4.

[^271]: *See id.* at \*4.

[^272]: *See id.* at \*5-10.

[^273]: *See id.* at \*5 (citing 23 [Pa. Cons. Stat]{.smallcaps}. §
    3501(a)(6) (1997)). Pennsylvania defines marital property as "all
    property acquired by either party during the marriage, including the
    increase in value, prior to the date of final separation." *Id.*

[^274]: *See id.* at \*6.

[^275]: *See id.* at \*11.

[^276]: McClure, 647 N.E.2d at 841 (citing [H.R. Rep. No.
    102-]{.smallcaps}311, at 556 (1991), *reprinted in* 1991
    U.S.C.C.A.N. 1042, 1112).

[^277]: *Id.* at 841.

[^278]: *See* *generally* *In re* Marriage of Kuzmiak, 176 Cal. App. 3d
    1152, 222 Cal. Rptr. 644 (Cal. Ct. App. 1986) (discussing treatment
    of involuntary separation pay as separate property).

[^279]: 5 U.S.C. § 5532(b) (1994).

[^280]: *See* *generally* TJAGSA Practice Notes, *Former Spouses'
    Protection Act, supra* note 158, at 133.

[^281]: *See* National Defense Authorization Act for 2000, S. 1059,
    106th Cong., 1st Sess. § 651 (1999). The act was signed by the
    President on October 5, 1999.

[^282]: *See id.*

[^283]: *See* [H. Rep. No.]{.smallcaps} 106-301, 106th Cong., 1st Sess.
    (1999).

[^284]: 145 [Cong. Rec]{.smallcaps}. S6384 (daily ed. May 27, 1999).

[^285]: *See supra* notes 32-35 and accompanying text.

[^286]: 5 U.S.C. § 5532(b). This legislation applies only to federal
    employees in the civil service who were officers in the armed
    forces. If an officer secures federal employment after military
    service, section 5532(b) requires the employee to waive a portion of
    his military longevity retirement in order to receive his federal
    salary. *See id.*

[^287]: 10 U.S.C. § 1408(a)(4)(B) (1994). *See also* TJAGSA Practice
    Notes, *Former Spouses' Protection Act, supra* note 158, at 31.

[^288]: *See* 5 U.S.C. § 5532(b).

[^289]: *See* 5 U.S.C. § 8332 (1994 & Supp. IV 1998).

[^290]: 957 P.2d 1010 (Ariz. App. 1997).

[^291]: *See id.* at 1013.

[^292]: *See id.* at 1010.

[^293]: *See id.*

[^294]: *See id.*

[^295]: *See id.*

[^296]: *See id.* at 1012.

[^297]: *See id.* at 1013.

[^298]: *See id.*

[^299]: *See id.* at 1014.

[^300]: 542 N.W.2d 114 (N.D. 1996).

[^301]: *See id.* at 116.

[^302]: *See id.* The payments were made directly by the retiree to the
    former spouse. The amended judgment required the member to make
    necessary arrangements so that the former spouse was paid by
    allotment. *See id.*

[^303]: *See id.*

[^304]: *See id.* The actual reduction associated with his Dual
    Compensation Act waiver was from \$2465 to \$1620 per month. *See
    id.*

[^305]: *See id.*

[^306]: Knoop, 542 N.W.2d at 116.

[^307]: *See id.* at 116. *See* *also* 10 U.S.C. § 1408(a)(4). For the
    USFSPA definition of disposable retired pay, see *supra* note 89 and
    accompanying text.

[^308]: 10 U.S.C. § 1408(a)(4)(B).

[^309]: Knoop, 542 N.W.2d at 116.

[^310]: *See id.*

[^311]: *See id.* at 117.

[^312]: *See id.*

[^313]: Pub. L. No. 104-201, div. A, tit. VI, § 637(a), 110 Stat. 2580
    (1996) (codified at 5 U.S.C. § 8332 (1994 & Supp. IV 1998)). *See
    generally* TJAGSA Practice Note, *National Defense Authorization
    Act, supra* note 200, at 20.

[^314]: Pub. L. No. 104-201, div. A, tit. VI, § 637(b), 110 Stat. 2580
    (1996) (codified at 5 U.S.C. § 8411 (1994 & Supp. IV 1998)).

[^315]: *See* 5 U.S.C. §§ 8332, 8411.

[^316]: *See id.*

[^317]: Oddly, there is no requirement that the spouse divorce the
    member who has committed the domestic abuse in order to receive
    payments and be entitled to benefits under this provision.

[^318]: Pub. L. No. 103-160, § 554, 101 Stat. 1663-67 (1993) (codified
    at 10 U.S.C. § 1408(h) (1994 & Supp. IV 1998)).

[^319]: The statute provides that the spouse or former spouse must be
    "the victim of the abuse and married to the member or former member
    at the time of that abuse; or a natural or adopted parent of a
    dependent child of the member or former member who was the victim of
    the abuse." 10 U.S.C. § 1408(h)(2)(B). A *dependent child* is:

    > an unmarried legitimate child, including an adopted child or a
    > stepchild of the member or former member, who (A) is under 18
    > years of age; (B) is incapable of self-support because of a mental
    > or physical incapacity that existed before become 18 years of age
    > and is dependent on the member or former member for over one-half
    > of the child's support; or (C) is enrolled in an full-time course
    > of study in an institution of higher education . . . is under 23
    > years of age and is dependent on the member or former member for
    > over one-half of the child's support.

    *Id.* § 1408(h)(11).

[^320]: *See id.* § 1408(h).

[^321]: *See id.* § 1408(h)(9). *See* *infra* notes 322-234 and
    accompanying text. Many members assume that there is a third
    category, the 10/10 spouse. This is a misapplication of the
    requirements for direct payment of military retired benefits from
    DFAS to the former spouse. *See supra* notes 194-199 and
    accompanying text. The 10/10 spouse is not, by virtue of being
    married to a military member for 10 years during which there was 10
    years of creditable service, entitled to any heightened benefits
    from the respective service. This misconception is reinforced by
    civilian publications, which frequently indicate that a former
    spouse must be married to a military member for 10 years in order to
    receive a portion of their retirement. *See, e.g.,* [Daniel Sitarz,
    Divorce Yourself]{.smallcaps}, 64 (1991).

[^322]: 10 U.S.C*.* § 1408(h)(7). The payments resume as of the first
    day of the month the marriage is terminated and continue in an
    amount that would have been paid if the continuity of the payments
    had not been interrupted by marriage. *Id.*

[^323]: Logistically, these nonmonetary benefits are given to the former
    spouse by issuing the former spouse and other eligible dependents an
    identification card. *See* Air Force Instruction 36-3026,
    Identification Cards for Members of the Uniformed Services, their
    Family Members and Other Eligible Personnel (Oct. 1, 1998)
    \[hereinafter AFI 36-3026\]. The basic eligibility criteria are
    outlined in AFI 36-3026 ¶ 2.7. The verification procedures used to
    confirm eligibility are outlined in AFI 36-3026 ¶ 2.8.

[^324]: The lack of interest in anything but military retirement pay is
    largely due to the fact that these other benefits do not cost the
    military retiree any direct payments. These benefits are funded from
    the service coffers and do not impact the benefits extended to the
    retiree. However, if these benefits are threatened in the future,
    this could become a point of contention with retirees and former
    spouses. *See* Bill Kaczor, *Military Still Promising Retiree
    Medical Benefits*, [Seattle Times]{.smallcaps}, Nov. 11, 1997, at
    C2; Bradley Graham, *Budget Ignores Military's Top Enemy: Lagging
    Pensions*, [Seattle Times]{.smallcaps}, Oct. 20, 1998, at A5.

[^325]: Edwin Schilling, *Benefits of Former Spouses of Military
    Personnel*, [Wash. St. B. News]{.smallcaps}, May 1990, at 11.

[^326]: 5 U.S.C. § 8332 (1994). *Creditable service* is defined as "the
    date of original employment to the date of separation on which title
    to annuity is based in the civilian service of the Government . . .
    credit may not be allowed for a period of separation from the
    service in excess of 3 calendar days." *Id.* § 8332(b).

[^327]: 10 U.S.C. § 1062 (1994). According to the statute "\[a\]n
    unremarried former spouse . . . is entitled to commissary and post
    exchange privileges to the same extent and on the same basis as the
    surviving spouse of a retired member of the uniformed services."
    *Id.* Unremarried really means unmarried for purposes of providing
    commissary and BX/PX privileges, and termination of a subsequent
    marriage does not revive the entitlement to benefits. *Id.*

[^328]: *See id.* § 1076. The definition of dependent is found in
    section 1072, which provides as follows:

    > The term dependent with respect to a member or former member of a
    > uniformed service, means . . .
    >
    > . . . .
    >
    > \(F\) the unremarried former spouse of a member or former member
    > who (i) on the date of the final decree of divorce, dissolution,
    > or annulment, had been married to the member or former member for
    > a period of at least 20 years during which period the member or
    > former member performed at least 20 years of service which is
    > creditable in determining that member's or former member's
    > eligibility for retired or retainer pay, or equivalent pay, and
    > (ii) does not have medical coverage under an employer-sponsored
    > health plan;
    >
    > \(G\) a person who (i) is the unremarried former spouse of a
    > member or former member who performed at least 20 years of service
    > which is creditable in determining the member or former member's
    > eligibility for retired or retainer pay, or equivalent pay, and on
    > the date of the final decree of divorce, dissolution, or annulment
    > before April 1, 1985, at least 15 of which, but less than 20 of
    > which, were during the period the member or former member
    > performed service creditable in determining the member or former
    > member's eligibility for retired or retainer pay, and (ii) does
    > not have medical coverage under an employer-sponsored health plan.

    *Id.* § 1072(2)(F), (G) (1994 & Supp. IV 1998).

[^329]: *See id.* §§ 1408, 1072, 1076, 1086.

[^330]: *See id.* § 1072(2)(F), (G).

[^331]: Department of Defense Authorization Act of 1985, Pub. L. No.
    98-525, § 641, 98 Stat. 256 (1984) (codified at 10 U.S.C. §
    1072(2)(G) (1994 & Supp. IV 1998)).

[^332]: *See id.* § 645(a)(3), 98 Stat. 256 (codified at 10 U.S.C. §
    1072(2)(G)).

[^333]: *See id.*

[^334]: Pub. L. No. 100-456, tit. VI, § 651, 102 Stat. 1990 (1988)
    (codified at 10 U.S.C. § 1078a (1994 & Supp. IV 1998)).

[^335]: 10 U.S.C. § 1078a(b).

[^336]: *See id.*

[^337]: *See id.* § 1078a(g) (stating former spouses and others who no
    longer qualify as dependents qualify for thirty-six months of
    coverage).

[^338]: *See id.* § 1078a(d).

[^339]: *See id.* § 1078a(f). Additionally, section 1086 provides for a
    schedule of payments by the patient for some outpatient services.
    *See* 10 U.S.C. § 1086 (1994 & Supp. IV 1998).

[^340]: *See* Marshal Willick, *ABA Response to the National Defense
    Authorization Act for 1998 § 643* (April 13, 1999) (transcript
    available on the Internet at http://www.abanet.org/family/
    military/nda98.html) \[hereinafter Willick, *ABA Response*\].

[^341]: *See id.*

[^342]: *See* Statement of Patrick J. Kusiak, Before the House Committee
    on Veterans' Affairs Regarding Garnishment of Veterans' Benefits for
    Child Support and Other Court-Order Family Obligations (Aug. 5,
    1998) (transcript available on the Internet at http://www.troa.org/
    legislative/FSPA/Hearing.asp).

[^343]: Uniformed Services Former Spouses Equity Act of 1999, H.R. 72,
    106th Cong. (1999).

[^344]: 145 [Cong. Rec.]{.smallcaps} E49 (daily ed. Jan. 7, 1999)
    (statement of Senator Bob Stump).

[^345]: H.R. 72.

[^346]: *Id*.

[^347]: *See id.*

[^348]: 10 U.S.C. § 1408(c)(1) (1994).

[^349]: *See supra* note 128 and accompanying text.

[^350]: *See* Willick, *ABA Response*, *supra* note 339.

[^351]: *See* *id*.

[^352]: H.R. 72.

[^353]: *Id*.

[^354]: *See id.* This provision does allow for incremental increases in
    retired pay to the former spouse as the retirement pay increase.
    *Id.*

[^355]: *See supra* notes 115-17 and accompanying text.

[^356]: *See* Willick, *ABA Response*, *supra* note 339.

[^357]: H.R. 72.

[^358]: *Id*.

[^359]: 10 U.S.C. § 1408(c)(1).

[^360]: H.R. 72.

[^361]: *Id*.

[^362]: *See supra* notes 178-93 and accompanying text.

[^363]: *See, e.g., In re* Marriage of McGhee, 131 Cal. App. 3d 408, 182
    Cal. Rptr. 456 (Cal. Ct. App. 1982).

[^364]: Abernethy v. Fishkin, 699 So. 2d 235, 237 (Fla. 1997). *Accord
    In re* Strassner, 895 S.W.2d 614 (Mo. Ct. App. 1995) (court could
    use an indemnification clause to prohibit husband from reducing his
    retirement pay paid to his former spouse below a certain
    percentage); Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992)
    (settlement agreement's guarantee/indemnification clause requiring
    the retiree to pay the same amount of support to the spouse despite
    the retiree beginning to collect VA disability pay held not to
    violate *Mansell*); Dexter v. Dexter, 661 A.2d 171 (Md. Ct. App.
    1995) (when parties enter into an agreement that one spouse will
    receive a percentage of pension benefits, the pensioned party may
    not hinder the ability of the party\'s spouse to receive the
    payments she has bargained for, by voluntarily rejecting, waiving,
    or terminating the pension benefits); McHugh v. McHugh, 861 P.2d 113
    (Idaho Ct. App. 1993) (parties mutual agreement for husband to pay
    wife a certain sum of money was enforceable even when an increased
    percentage of retirement pay was awarded to former spouse to
    compensate for reduction because of disability waiver).

[^365]: *See* *Thomas*, *Legislative Information on the Internet*, *Bill
    Status and Summary for the 106th Congress* (visited Nov. 15, 1999)
    \<http://thomas.loc.gov/home/thomas.html\>.

[^366]: *See* *id.* This review was required by the National Defense
    Authorization Act of 1998, Pub. L. No. 105-85, § 643, 111 Stat. 1799
    (1997). This review encompassed other laws affecting federal civil
    service retirement and current civil practices regarding division of
    retirement pay or pensions and was required in order to assess
    whether the USFSPA should be amended. [H. R. Conf. Rep.
    No]{.smallcaps}. 105-340, at 759 (1997), *reprinted in* 1997
    U.S.C.C.A.N. 2251, 2545. Rick Maze, *Ex Spouse Debate Renewed*,
    [Army Times]{.smallcaps}, Jan. 23, 1995, at 20 (reporting Rep.
    Robert K. Dorman's promise to review the Uniformed Services Former
    Spouses' Protection Act).

[^367]: As of November 15, 1999, there were fifty-three cosponsors to
    the bill, with the latest two cosponsors joining in late October.
    *Thomas,* *Legislative Information on the Internet*, *Bill Status
    and Summary for the 106th Congress* (last visited Nov. 15, 1999)
    \<http://thomas.loc. gov/home/thomas.html\>.