Screwed again, divorced military members to keep getting fucked.
Judge Dismisses Legal Challenge to Military Ex-Spouse Law
by Tom Philpott
A federal judge has dismissed a lawsuit brought by 58 divorced service members and retirees challenging the constitutionality of the Uniformed Services Former Spouses Protection Act.
The 1982 law allows state courts to divide military retirement as property in divorce settlements.
U.S. District Court Judge James. C. Cacheris in Alexandria, Va., granted government motions Oct. 12 to dismiss Adkins, et al. v. Rumsfeld and all claims brought by individual plaintiffs and by ULSG, a non-profit support group established to raise legal fees for court challenge.
In a 15-page opinion, Cacheris said his federal court, for the U.S. Eastern District of Virginia, lacked subject matter jurisdiction to hear the case, and the plaintiffs lacked legal standing to bring their lawsuit.
Cacheris also ruled that, because the legal challenges could have been raised in state courts when the original divorce and property issues were being settlement, a legal principle of res judicata applies. In Latin that means "the thing has been judged" and therefore a new case is useless.
Lawyers for the divorced service members and retirees have filed a motion for reconsideration.
They also announced plans to appeal to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.
Judge Cacheris agreed with U.S. Attorney Paul J. McNulty that the court doesn't need to weigh the merit of the constitutional challenges to the USFSPA. He had to dismiss the case based Supreme Court rulings that bar federal courts from nullifying state judgments on issues that could have
been raised before state court.
This Rooker-Feldman doctrine has been used by other federal courts to dismiss other challenges to the USFSPA.
The judge said he assumed the service member plaintiffs and retirees had participated in their divorce proceedings," learned the result and had "a reasonable opportunity to raise their federal claims in state court."
He also accepted the government's charge that ULSG (USFSPA Litigation Support Group) lacks "organizational standing" to allege injury.
The complaint, he wrote, doesn't explain who the ULSG members are or whether they "would have standing to sue in their own right."
Cacheris didn't address arguments from plaintiffs that the USFSPA is unconstitutional because: it is applied retroactively to members who entered service before the law took effect; it provides inadequate procedural protections; it differs from laws that govern other federal pensions in
divorce; and state court don't enforced it with uniformity.
In its motion to Cacheris to reconsider, ULSG argues that some legal flaws of the USFSPA aren't "ripe" to be challenged in state courts at time of divorce because the harmful effects don't occur until service members retire and the Defense Finance and Accounting Service begins to divide retired pay.
And they're getting screwed how, exactly? By being subject to the same laws on distribution of property (including pensions) accumulated during a marriage as everybody else who gets divorced in a given state? Are they screwed because the should be able to leave a spouse penniless in retirement? What exactly is the problem here?
As much as someone may hate an ex-spouse, they didn't have a gun to their head when they got married. Yes it's not fair that a spouse may cheat and then end up with 1/2 $$/pension/etc. after the divorce. No one said life was fair.
You don't know jack-shit about the issue then.
I'll point out a few issues.
Payout based on retirement rank/grade vice actual paygrade when the divorce happened.
Say you were married for 8 years and your spouse divorced you when you were an E-5.
When you retired at 30 years you were an 0-5.
Is it fair that your spouse gets to collect a percentage of your retirement pay based on your final rank/grade of O-5 with 30 years instead of a corrected pay adjustment for an E-5 at 6 years?
Your spouse was not married to you when you advanced in your career.
You divorced from your spouse and she is collecting a portion of your retirement pay.
For whatever reason you are found to be a disabled Vet and are eligble for disability pay.
Your former spouse can now collect a portion of your disability pay.
Is your spouse disabled? Will they have to live with this disablility for the rest of their life?
Divorced spouse remarries.
Even after the divorced spouse remarries they can continue to collect on the retirement/disablility pay of their former spouse.
How many divorced people have a divorce settlement that continues to pay out even after the ex-x-spouse remarries?
You would really sign a divorce settlement that had a provision like that if you didn't have to.
There are others...
And you've litigated how many military divorces, exactly? The rules that divide military pensions in state court are IDENTICAL to the rules dividing civilian pensions. Identical. So, tell me again, what are you whining about when you say "Screwed again, divorced military members to keep getting fucked." I think you mean "Divorced military members to continue being treated like everybody else."
So the wifey works, does the husband get half of her retirement too. HELL NO! Now tell me the system isnt fucked up. I call
I call [animation for "You have no idea what the hell you're yammering about and have made a first class fool of yourself"]. Pensions, to the extent they accrue during a marriage, are equally divided. Where one is larger than the other, the judge has the option of netting them out, so that only the spouse with the smaller pension gets a check, rather than having two checks pass each other in the mail. The answer to your dumbass badly punctuated question (So the wifey works, does the husband get half of her retirement too.) is "Yes, Gomer, he does."
They are not identical to government pensions and they same rules that apply to governement pensions do not apply to military retirement.
That's why there is a "special law" for military retirement pensions.
Is there a special law that only covers auto workers and no one else? I think not.
Further, the entire issue of "military retirement pension" is a bullshit issue.
A military person can "retire" after 20 years of service. HOWEVER, they are not legaly retired, they are getting a RETAINER as they are still IN THE FUCKING MILITARY until they reach 30 years of service.
Why should an ex-spouse get a portion of the "retainer" pay. Is that ex-spouse going to follow their ex-spouse back into the military life if they get recalled? Is that ex-spouse still liable under the UCMJ?
I'll agree that the ex-spouse should get a portion of the RETIREMENT PAY onve the service member goes over 30 years. However, it should be based on the paygrade and the actual base pay of the member at the time of the divorce, not at the paygrade at the end of service.
I don't know of one divorced person who is paying out ANY portion of their disablility check to an ex-spouse except for retired military members.
How much time did you do in the service?
How many divorces have you litigated?
As I already posted, no own has a gun to their head when they get married. A person makes the choice to get married. Maybe they should have 'weighed the issues and made an informed decision' before getting married. The divorce rate is >50%, and while no one plans on a divorce, that fact should be kept in mind if there are substantial current or possible future assets. There are pre-nuptual agreements that can head off heartache down the road. During a divorce, many people go cheap on a lawyer and then are shocked that things didn't go their way at trial. Again, that is another choice they made. You get what you pay for. We all make poor choices at some point in our lives and we have to live with them. That's taking responsibility for your choices. Is this something you disagree with?
As far as life not being fair: I have numerous personal examples that are none of your business, but I'll give you one that happened to someone else. I diagnosed a brain tumor in a 14 year-old girl 1 1/2 years ago. The first words out of her mouth when I told her were "Am I going to die?". She was beautiful, intelligent and had a loving stable family. She hadn't done anything to increase her risk of cancer, as opposed to lifelong smoker with lung cancer. She died one year to the day after her diagnosis after a lot of suffering. I saw her the day she died. Her parents looked like they had aged at least 10 years. "Life's not fair" is not a glib remark. I really believe it.
I have no such worries.
That door swings both ways and what happens when children are a factor ?