SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCGARNISHMENT OF BENEFITS PAID TO VETERANS FOR CHILD SUPPORT AND OTHER COURTORDERED OBLIGATIONS
WEDNESDAY, AUGUST 5, 1998
House of Representatives,
Committee on Veterans' Affairs,
The committee met, pursuant to notice, at 10:10 a.m., in room 334, Cannon House Office Building, Hon. Bob Stump (chairman of the committee) presiding.
Present: Representatives Stump, Everett, Quinn, Cooksey, Evans, Mascara, Peterson, Rodriguez, Snyder, and Reyes.
The CHAIRMAN (presiding). The meeting will please come to order.
Both conferences are still going, but the ranking member agrees that we should probably proceed. We have a very long agenda today, so I think we'll go ahead and start taking our testimony.
We are here today to gain a better understanding of the various laws which allow veterans' benefits to be divided or garnished for child support and other court-ordered obligations. In our Federal system, States have the primary responsibility to determine spouse and child support obligations.
The failure by one or both parents to provide adequate support for their children was dealt with at length when Congress revised our nation's welfare laws 2 years ago. However, Congress has also long been concerned about protecting the payments made to disabled veterans from garnishment or other legal claims. The fundamental question before us is, under what circumstances should the Federal Government permit the garnishment of disability benefits or military retired pay in order to satisfy a veteran's family obligations?
Page 2 PREV PAGE TOP OF DOC We'll receive testimony today on the circumstances in which garnishment is allowed and whether changes to the current law would make it more equitable. In addition, we welcome witnesses from the veterans' and former military communities, who will share their views on how military retired pay and veterans' benefits are handled during a divorce.
As many of you know, I introduced H.R. 2537, The Uniformed Services Former Spouses Equity Act of 1997. This bill does not repeal a judge's authority to divide military retired pay, but attempts to provide greater equity to both parties in divorce proceedings.
We are all aware of inconsistent and apparently unfair decisions made by the States' courts systems affecting a veteran's obligation for alimony and other child support payments. But uninformed judges or mistaken decisions should not be the basis for legislation.
I appreciate the time which so many of our witnesses spent in assembling information for Congress' use as it deliberates on this important topic.
I would now yield to Mr. Evans, the ranking member, for any statement he would like to make.
[The prepared statement of Chairman Stump appears on p. 35.]
Mr. EVANS. Thank you, Mr. Chairman. I also look forward to the testimony to be presented today. I welcome the witnesses who will be testifying this morning and I appreciate the contributions each of you will make to today's hearing.
Because of the length and number of witnesses Mr. Chairman, I'll forego an opening statement.
The CHAIRMAN. Thank you, Mr. Evans. I would remind those members present and those witnesses, because of the agenda today, we will have to strictly adhere to the 5-minute rule. If you could limit your testimony to 5 minutes, your entire statement will be made part of the record.
Page 3 PREV PAGE TOP OF DOC If the first panel would come up? Mr. Kusiak, and Mr. McKinney, and Mr. Willick. Gentlemen, thank you for taking the time to be here today. We have no particular order but Mr. Kusiak, I have you listed first. So if you would care to startlet me remind those that are not familiar that a little green light will go on for your testimony. When that orange light comes on, you have about 1 minute to summarize the rest of your statement. If you would please, sir?
STATEMENTS OF PATRICK J. KUSIAK, LEGAL CONSULTANT TO THE RETIRED OFFICERS ASSOCIATION; C.A. ''MACK'' MCKINNEY, LEGISLATIVE COUNSEL, FLEET RESERVE ASSOCIATION, AND MARSHAL S. WILLICK, ATTORNEY, AMERICAN BAR ASSOCIATION
STATEMENT OF PATRICK J. KUSIAK
Mr. KUSIAK. Yes, sir. Thank you very much.
The CHAIRMAN. You may commence any time you see fit.
Mr. KUSIAK. Thank you, Mr. Chairman and distinguished members of this committee.
The CHAIRMAN. If you could pull the mic just a little closer, please sir?
Mr. KUSIAK. Yes, sir. Before I begin, I'd like to indicate that other associations have joined The Retired Officers Association in my testimony here today and I'd like to submit that list for the record.
The CHAIRMAN. Certainly, without objection.
(See p. 56.)
Page 4 PREV PAGE TOP OF DOC Mr. KUSIAK. I'm pleased to be here this morning to provide some observations regarding Federal laws related to garnishment of veterans' benefits for child support and court-ordered family obligations and the views of The Retired Officers Association on these matters. I'm going to try to limit my comments to 5 minutes as you suggested, Mr. Chairman. Simply because there's a lot of issues here, I'm going to try and just sort of highlight the points of my statement which has been submitted for the record.
The CHAIRMAN. Thank you, sir.
Mr. KUSIAK. Generally, with regard to garnishment, there's no question that the Retired Officers Association and others support any efforts to strengthen and streamline procedures to collect child support. There's a legal and moral obligation for every parent to support his or her children and efforts to ensure that support is provided areare endorsed.
We suggest, however, that in the context of spousal supportand when I say, ''spousal support,'' I mean alimony, alimony unrelated to child supportalimony has been an opportunity or has been used by a number of State courts to indirectly do what we believe Federal law prohibits them from doing; in particular, dividing disability by providing for payment that is akin to a division of retired pay but, in fact, is characterized as alimony. Utilizing those strengthened enforcement mechanisms to collect that kind of alimony is probably not what the Congress intended. Consequently, we would suggest that current law should be modified to eliminate the mechanism of alimony as a scheme toor mechanism to divide what cannot be divided as marital property.
There are other concerns regarding division of disability. State courts are really having asome State courts have a difficult time grappling with the concept of disability as something different than normal retirement and, consequently, there's been a number of devices, mechanisms, or legal concepts that State courts use that, in effect, divide disability.
Page 5 PREV PAGE TOP OF DOC Disability compensationwhen I say, ''disability,'' I'm not talking about disability retired pay that is based on years of service. I'm talking about disability retired pay that is based on a percentage of disability or disability from the Veterans' Administration, clear disability compensation that, in virtually all circumstances, is never divided as a marital asset. These devices include things such as alimony, a concept known as res judicata, which essentially says, if we divide it, you didn't object before, it's too bad; it's too late to object after the fact. There are other mechanisms as well where a member is perceived to have agreed to divide disability. All these kinds of devices and techniques should be eliminated to prevent the division of disability.
There are some structural deficiencies, we think,
in the Former Spouse Protection Act that I'd like to bring to your attention. One in particular is the continuation of a spouse's interest in retired pay after remarriage. Fundamentally, retired pay is really not like any other kind of property. It's not like a house. It's not like a car or a piece of land. It is a Federal entitlement that has unique aspects to it that don't exist in other context. Consequently, it really is not property, and a spouse's interest in retired pay should be no greater than the member's interest. One way to highlight that is to simply say that a continuation of a division of retired pay as marital property should end if the spouse remarries.
Another concern addresses the issue of Survivor Benefit Plan. Essentially, survivor benefit premiums are deducted from retired pay before it can be divided. This effectively makes the economic burden of SBP paid by the owners of the retirement after it's been divided. As an example, if a member gets 75 percent of disposable retired pay and a spouse gets 25 percent, the member pays 75 percent of SBP and the spouse pays 25 percent. It's not uncommon for State courts around the country to require the former spouse to pay the full amount of SBP. Yet, when those court orders are sent to the finance centers they really can't comply because the law doesn't authorize them to do so.
Page 6 PREV PAGE TOP OF DOC Secondly, Federal law for Federal civilians permits multiple beneficiaries of SBwell, not SBP, but a survivor annuity. Under the military survivor benefits system, there's only one SBP beneficiary and you can't have multiple beneficiaries. We think that should be changed.
Fundamentally, the more structural problem is one related to how a division of retired pay as marital property must be stated. The Federal law says that disability retiredrather, retired pay that's divided as marital property must be stated as an amount certain or a percentage. That's fine if someone continues to serve throughout their entire career and gets divorced after that career has ended. But if the marriage ends during the course of a career, it becomes really problematic to decide what that percentage should be. If it's a percentage based simply on years, that percentage is not going to be accurate enough because it's going to somehow give the former spouse a benefit of subsequently accrued benefits. That should be changed. In addition, the amount of retired pay that's divided should be limited to amount that's earned during marriage.
Finally, there should be an invalidation of any court order that orders a member on active duty to make a payment that's akin to dividing retired pay.
Finally, I think, clearly, we believe the Federal law needs to be modified to effect a remedy to some of these inequities.
Thank you for the opportunity to address these questions and I'd be pleased to answer any questions.
[The prepared statement of Mr. Kusiak appears on p. 42.]
The CHAIRMAN. Thanks, sir. Since I failed to properly introduce you, Mr. Kusiak representshe's legal counsel for the Retired Officers Association.
Next we have Mr. McKinney, who is legislative counsel for the Fleet Reserve Association in behalf of the 15 member organizations of the Military Coalition. Mr. McKinney?
Page 7 PREV PAGE TOP OF DOCSTATEMENT OF C.A. ''MACK'' MCKINNEY
Mr. MCKINNEY. Thank you, Mr. Chairman and distinguished members of the committee. I appreciate this opportunity to discuss the Uniformed Services Former Spouses Protection Act. In doing so, it is a privilege to represent the member organizations in the Military Coalition that are listed on the opening page of my prepared statement. I might add that the Marine Corps League had joined that group. If you will so submit for the record.
To begin, allow me to assure the committee that my prepared statement is not in opposition to the garnishment of retired pay for child support. In that case, military retirement pay is not considered property to be divided at the whim of some State court.
And, for the record, I'm personally not opposed to dividing the accumulated assets of the parties in a divorce. In this respect, I would be willing to share whatever my spouse and I had in the way of property, but not my military retired pay. However, if I voluntarily provide my former spouse with payments from my military retired pay, it would be my own doing, not as a result of the Federal Government giving the State courts access to that pay simply because some States refuse to amend their own laws to effect the proper collection of court-ordered obligations.
Having said this, there's an old adage used quite often to describe the making of a law and sausage. If you like one, don't watch it being made. Never has this been more descriptive than when applied to the USFSPA. Here is a law that was molded from a mix of complicity, subterfuge, embellishment, subtleties, inequities, and half-truths. A witch's brew to be sure. And my purpose today, is to provide the committee with a history leading to the enactment of the USFSPA.
It began some years before the enactment where stories of mistreated divorcees of Federal employees and military personnel were printed in the Congressional Record and fed to local newspapers and other publications. Throughout the text, the word pension was used over and over again to describe military retired pay as well as Federal retirement benefit. By placing both under one descriptive term, pensions, it soon led uninformed persons, including members of Congress and civilian military officials to believe that military retired pay was a payment for services rendered and not what it really is, reduced pay for reduced services.
Page 8 PREV PAGE TOP OF DOC As time moved on, a group from the Texas congressional delegation of that period gave its attention to the effort by a former congresswoman, Pat Schroeder, and others to produce a law that automatically required the Federal Government to make payments to divorced spouses of Federal employees and military personnel. It would be a way to circumvent changing the Texas Constitution in order to authorize the garnishment of Federal pay for court-ordered alimony, child support, and even divisions of property.
Hearings were conducted by the House Armed Services Committee to address former Congresswoman Schroeder's proposals and related bills. Pleas were heard from both sides. The opposition, at that time, consisted of the Department of Defense and a number of major military organizations. No action was taken in the House.
Suddenly, the issue became a hot topic on the Senate side. The Supreme Court decision on the McCarty case moved the Senate Armed Services Committee to act quickly. Was it because the committee had a new chairman, a Texan? What caused the Department of Defense to change its mind? Was it the influence of a new SASC chairman? I leave the answers to you after you read my prepared statement, Mr. Chairman.
I was and I am deeply involved in this issue, from the time former Congresswoman Schroeder introduced her first proposal through the enactment of the USFSPA and, subsequently, dealing with the financial suffering of many military retirees who fell victim to the worst law ever passed by Congress adversely effecting veterans of our uniformed services. As former Congressman Richard White warned during the debate on the Schroeder amendment, it creates more loopholes than it cures, and so it has. It deserves to be repealed, Mr. Chairman or, at least amended to make it equitable for both sides.
Thank you very much. I stand ready for any questions.
[The prepared statement of Mr. McKinney appears on p. 57.]
Page 9 PREV PAGE TOP OF DOC The CHAIRMAN. Thank you, Mr. McKinney.
Mr. Willick from the American Bar Association.
STATEMENT OF MARSHAL S. WILLICK
Mr. WILLICK. Thank you. Mr. Chairman, members of the committee, thank you for allowing me to present testimony on behalf of the American Bar Association today. My name is Marshal Willick. I'm an attorney from Las Vegas, Nevada. I chairI co-chair the Congressional Relations Committee of the Family Law section of the ABA.
I have been working in this area for quite a bit of time. Since shortly after the USFSPA became law, I chaired the committee of experts made up of former JAG officers and civilian attorneys that did the comprehensive report to Congress in 1990. Since then, I've handled several hundreds of these cases personally, working for both sides. I have consulted on some thousands of them. I have lectured and written widely in the field and have completed a text book on this subject.
My goal, consistent with existing ABA policy, is to recommend that military retirement benefits be treated by courts in the real world of everyday litigation in the State courts in a manner consistent with the property distribution laws of those States which, of course, are designed by those State legislatures to achieve equity in property distributions in divorce cases.
There are two formal statements of policy by the ABA. One was in 1979, urging that all forms of deferred compensation be allowed to be subject to State dissolution laws, and the other one in 1982, in the wake of McCarty, and that was a formal policy, again, strongly urging specifically that military retirement be made divisible as would any other asset so that military members are treated like civilian employees of the Federal Government, employees of State governments, and private citizens all throughout the United States.
Page 10 PREV PAGE TOP OF DOC My own research in this field has made it quite clear that, especially in military cases, the military retirement benefits are, far and away, the most valuable asset of most military marriages. So that if you do not fairly divide that asset between the two parties, it is impossible to ever achieve an equitable distribution because there is no possibility of compensating the spouse for the benefits be accorded to the military member. Simply, wouldn't be possible.
I'd like to turn to the individual proposals after I make a couple of quick comments about national law. And that is a little tricky. We have 50 little kingdoms out there and they all do their own thing. So it is difficult to summarize without somebody being able to find a technicality that the could quibble with. But, generally, all 50 States have recognized today that military retirement benefits are property, properly divisible between the spouses to a marriage. All 50 States have recognized that retirement benefits, generally, are valuable property rights that should be accorded between the spouses in proportion to the extent they were earned during the marriage since both parties to the marriage contribute to the marriage, although sometimes in different ways. Sometimes one person stays home, one person goes to work, whatever. But that's the deal that the people make.
The ABA policy is that the treatment by the State courts of military retirement benefits should not be impeded by congressional preemption of State law, so that the State divorce court judges are allowed to treat military members the same way they treat all other civilians and Federal employees and State employees.
Turning to the individual proposals, termination of spousal interest upon remarriage, I'll quibble with Mr. Kusiak. Now, these assets are assets and no assets anywhere in the United States are retroactively terminated in the event of remarriage. It doesn't happen for any other asset of any kind anywhere in the United States. It would, without question, cause a great deal of dispossession of individuals and unsettle established property rights to allow for termination of retirement benefits division upon remarriage. It would also make military members be treated differently than everybody else in the United States which would provide a marvelous opportunity for creating inequity and confusion all throughout the States. State law would be impaired. It would be problematic. That proposal is directly contrary to existing ABA policy and I strongly urge that you reject.
Page 11 PREV PAGE TOP OF DOC I would note that just a few years ago in Barker v. Kansas, the U.S. Supreme Court, at the urging of the same groups that are here today telling you that military retirement benefits are not to be treated as deferred compensation, ruled that military retirement benefits are deferred compensation. And the reason the military groups wanted that ruling from the United Supreme Court a few years ago is that meant they couldn't be taxed differently that State employees. So you will find that their characterization of the benefits, and that goes for the partisans on both sides, tends to be in direct reaction to where they think their interests are at stake. The ABA, of course, doesn't have a partisan stance.
As opposed to my work in the courts, where I try to represent my client and get the best deal I can in that case, my role here today is to try to establish what the law should be. And the ABA has long stood for the position that it should be fair and equitable to allow States to do the things that they do for spouses to a marriage.
Turning tojust in summary on the first proposal and I see that I don't have much time. So I tell you what, I'm going to skip that proposal. I'm going to go straight to garnishment.
This committee ought to be aware that is a much smaller question, I think, than the committee may be aware. The number of people affected is, apparently from the research I've been able to do, about less than 100 a year. The total number of cases may be some thousands although I don't have a good count. The only time that the garnishment provisions would come into effect is in the case where a military member was ordered to pay child support, did not pay child support, a State court later entered an arrearage award, and then, usually, the custodial parent of that child tried to garnish on that arrearage. That is the only time this would come into place.
The danger with the legislation is that it would allow retroactive recharacterization of retired pay as disability pay. Until Congress is willing to take the physical step that Congress so far has not been willing to take, to grant disability awards in addition to, rather than in replacement of, retirement benefitsI see I'm out of time, but I'd like to finish the sentence.
Page 12 PREV PAGE TOP OF DOC The CHAIRMAN. Sure, certainly.
Mr. WILLICK. Until Congress is willing to supplement the retirement benefits rather than have them be replaced, it is not going to be possible to make this nongarnishable for child support purposes without directly injuring the dependants of the retirees.
This committee should note that Congressanother branch, essentiallyanother committee has put through legislation within the last couple of years highly criminalizing nonpayment of child support. Even making interstate travel to avoid child support a criminal activity. The Congress has decided it is a crime. If you went ahead and passed this proposal as it wasand I'm unfamiliar with any case where they have used this strictly for alimony, I only know of a diversion, which is discretionary with the VA in the event of, usually, large amounts of child support arrearagesif you did this, you would be encouraging people to, essentially, do what it is that you have just decided is criminal. And then you would make it easier for those same people to end up getting it criminally sanctioned. And I would submit that it would be illogical to condone or encourage or contribute to a behavior that you then wish to punish. So, I would suggest not doing anything to make garnishment more difficultalready, it's very rare and very infrequent.
I have a lot of other comments as to the individual proposals. I would refer the committee to the written testimony which I have tried to buttress with appropriate authorities.
The CHAIRMAN. That will be included in the record.
Mr. WILLICK. Thank you.
[The prepared statement of Mr. Willick appears on p. 77.]
The CHAIRMAN. Thank you, Mr. Willick.
Page 13 PREV PAGE TOP OF DOC Are there questions? Mr. Evans?
Mr. EVANS. Mr. Willick, some of the testimony we have received for today's hearing in advance suggest that military retirees and veterans are treated less favorably in divorce proceedings than any otherany other retirees, such as civil service retirees. Can you describe any differences between the treatment of military-related benefits and civil benefits in divorce proceedings?
Mr. WILLICK. The most obvious one is that there's a 50 percent limitation to military retirement benefits division, whereas with almost all other forms of retirement benefits up to 100 percent can be allocated to the spouse in the discretion of the divorce court if it feels that it's most appropriate. No, I would not say that that is an appropriate summary. Military retirees are still a highly favored class. Military retirement benefits are still one of the most difficult things to divide with the most exceptions, take backs, reductions, exceptions, etcetera rather than any other form of deferred compensation.
Mr. EVANS. Thank you, Mr. Willick. Thank you, Mr. Chairman.
The CHAIRMAN. Are there other questions, gentlemen? Doctor?
Mr. SNYDER. Mr. Willick, I know webecause of the time constraints of the committee, we don't necessarily give you a lot of time. But you had a point that you had skipped over and I have a few minutes here, if you'd like to proceed with any other comments you want to make.
Mr. WILLICK. Well, I think it had to do with the otherthe other individual proposals. Unfortunately, it comes down to a matter of mathematical proof and it's very convoluted and difficult to present orally. But on the limitation to length of service and rank at time of divorce, what you're doing there is what's often called, the smaller slice of the larger pie. And if you do what this proposal suggest, what you do is do a double reduction. You freeze the spousal share as to percentage in terms of total dollars and then you defer its payment over time. Since people always have a finite life time, the net effect, according to my own research, is to reduce the effective spousal share of that which was actually earned during the marriage by about 13 percent.
Page 14 PREV PAGE TOP OF DOC So the effect of the proposal would be to turn some of the spouse's property into the member's property. Congress could decide to force the States to do so, but there would be a lot of fallout from that. For example, I'll give you a few logical problems with it. If you had two spouses, one of which was married to the member for exactly the first half of the career and the second of whom was married to the member for exactly the second half of the career, those two spouses would get widely different awards under the existing proposal.
Whereas, under the law of most States today, the way it would work is they would be treated the same. They would say, get 25 percent of the net military retirement benefits received at the end of service. If this proposal went through, one of them would get a piece of a hypothetical retirement from 10 years earlier based on COLA's that accrued for a rank that nobody's had for that amount of time, even though the final rank achieved is as dependent on the first 10 years as on the last 10 years since you can't get to the end without going through the whole process.
So there are some logical problems with it although it's facially appealing. And I would just urge you to go back to the references. There have been law review articles which have gone over the math. And it just doesn't make logical sense if you take the thing apart to do that.
There would be some unintended side effects with the proposal as written. For instance, a lot of property would be taken from military members in a number of States that I don't think anybody has really paid attention to. And that's because the State courts divide property, they terminate the accrual of marital property at different times.
Currently, this proposal requires reference to the final decree of divorce. But some States, for example, California, terminate the development of community property at final separation. Now, the divorce itself in that State can take 2 years. So the effect of this proposal would be to turn 2 more years of property over to a spouse by preempting State law that otherwise would have terminated the spousal interest and give it to that spouse. Now, I'm not sure the drafters of the proposal had that idea in mind, but that would be one of the unintended effects of the legislation as drafted. So I'm not sure it's been completely thought through because you would be handing out various inequities to various people in various States.
Page 15 PREV PAGE TOP OF DOC The restriction of retired pay to actions within 2 years of divorce is ain my personal opinion, a spectacularly bad idea. Again, as a matter of State law preemption. And that's because I believe thatI haven't read all this written testimony yet, but I think that Congress is being largely misinformed about the scope of a nonexistent problem.
Partition actions exist in the States to remedy inequities. They aren't devices for creating inequities. The only way anybody can partition an omitted asset is by persuading a State court judge that Party A is in possession of property that has actually belonged to Party B. All 50 States have statutes of limitations. No State is allowed to go back beyond those limitation periods. And many States consider that the action itself can't be brought if you go beyond that limitation period. But again, that's a matter of State law.
Even though States that allow partitioningand California is usually the bogey man when this is brought up in Congresseven the most famous case on subject which is Casas v. Thompson, restricted the spouse's ability to partition the omitted military retirement to prospected payments. In other words, the court said to Mr. Thompson, Mr. Thompson, you've got 100 percent of the property that was supposed to have been divided all this time between you and the wife, so from now on she gets her half. That was not an unfair result. And there's no reason for Congress to use the power of preemption to stop the States from remedying inequity when they see it because that would be effect of this proposal.
I should note that Congress weighed the policy alternatives just 6 years ago. And if you look at the House report, it made a point of saying that they were attempting to consistent with balancing the State and Federal interests that have been the hallmark of this law since its inception. And what Congress did was decide that all those spouses that didn't get a piece of the military retirement benefits before McCarty, before 1981, were out. They no longer had access to the State court to ask a judge whether they have been wrongfully dispossessed. They can't get in at all. But for all the people that were divorced since McCarty, and since USFAPA's effective date, those people can at least ask a judge whether or not they have been wrongfully dispossessed, get a State court decision, and those State courts divisions, if indeed they're made, are enforceable through the military pay centers.
Page 16 PREV PAGE TOP OF DOC Unless this panel willing to tell the Congress of 6 years ago that weighed the equities wrong and made a bad call, there isn't a reason to go back and divest a larger group of future former spouses from being able to have access to the courts. It would require a finding that Congress did it wrong the last time, and I'm not sure that'sI'm not sure that's correct.
That really was the other three topics I wanted to address. And I thank you for allowing me to make those points.
The CHAIRMAN. Mr. Kusiak, your name was mentioned once, did you have any response or anything to what Mr. Willick had to say.
Mr. KUSIAK. A couple, if I may, sir. Thank you very much for giving me the opportunity.
Mr. Willick said that military are favored retirees in the divorce case in comparison to other Federal employees. In the context of retirees in the Central Intelligence Agency and the Foreign Service, unless a court order provides otherwise, payments to a former spouse terminate upon remarriage. In addition, under the Federal civil service system, military retireesrather civilian retirees can split up the survivor benefit among a number of different beneficiaries. In the military, you can't. Those are two examples of things that I think have been mentioned in the context in military that are not available to them that are available to some other Federal civilians.
In addition, the retroactivity discussion that Mr. Willick made is absolutely correct. In 1990, the Congress made a specific enactment to invalidate court orders that had divided retired pay improperly by retroactively reopening, through a partition action, in cases that had been long settled when this marital asset was discovered because of the enactment of McCarty in many cases or, at least, perceived to be found then even though it was ignored in the earlier divorce decree.
Page 17 PREV PAGE TOP OF DOC Courts have had difficulty, in some circumstances, in applying that limitation that Congress enacted in 1990. By suggesting that even though the divorce decree did not pertain toor did not retain jurisdiction to divide retired pay under the laws of that State, every court has jurisdiction for dividing retired pay, in effect, invalidating the prohibition that Congress enacted in 1990.
So, I think the context within which the expressions are made would be helped by that addition. Thank you for the opportunity.
The CHAIRMAN. Are there other questions? Yes, Dr. Snyder. Any other questions?
Mr. Kusiak, let me ask you a question. Suppose Congress were to change the law so that retired pay could be divided as a marital asset but not as property? State courts would then be able to take into account such factors as the financial condition of both parties and could make a case-by-case determination on whether payment should cease upon remarriage. Since retired pay is really a function of Federal statutory entitlement and has no characteristics of property, would this be more fair than the current law?
Mr. KUSIAK. Mr. Chairman, ifhaving it identified as a marital asset but not property may be more a facial distinction than a legal one. I don't practice divorce law as I've said in my statement, but I think a marital asset could easily be characterized with the label property under a State law. And the problem with characterizing it as property is that because it's considered property, a number of States, because of the laws of their own jurisdiction, have difficulty ignoring their own State law. And the one that comes to mind immediately is this notion that disability is somehow an add-on to retirement as opposed to an alternative. It's because of property that they say a spouse can't be deprived of this interest.
The CHAIRMAN. Mr. Willick, you touched on this but if you'd care to add to your statement? Is thatare you satisfied?
Page 18 PREV PAGE TOP OF DOC Mr. WILLICK. Actually, Mr. Chairman, if you used the title, marital asset, you classifyan asset is property. Those words mean the same thing to the States of the United States. I do practice divorce law and I believe that would be uniform in every State. But that's true with every defined benefit plan. You find that an increasing percentageactually, the largest asset of most marriages is now deferred compensation of some sort, the right to receive in the future, payments usually from an employerthere's more private employers than there are government employersand that's exactly the way it works with every defined benefit plan. You have a right to receive in the future X payments for the rest of your life which is exactly how the military system works. It is, essentially, a noncontributory defined benefit plan and not really different.
I will agree with Mr. Kusiak on one point. In 1990and I was very sorry that no one in Congress picked up on itthe one thing that everybody that testified agreed to, the retirees groups, the spouses groups, the ABA, the Pentagon rep, the one thing that we all said we would like to see is the divisability of the survivorship benefit to mirror civil service. Because that makes sense. You'll allow survivorship benefits to be apportioned in accordance with how much was accrued during the marriage. And that testimony form all participants was apparently simply ignored. Wenothing, nothing was ever introduced, nothing was ever passed. And that's a bit of a shame because it's led to gamesmanship on both sides in State divorce courts.
The CHAIRMAN. Thank you, sir. If there's no further questions? Gentlemen, thank you very much.
And if we could call the second panel up please?
Mr. WILLICK. Thank you, Mr. Chairman.
The CHAIRMAN. All right, Mr. Ault, we'll start off with you. Frank Ault, the Executive Director of the American Retirees Association. Mr. Ault?
Page 19 PREV PAGE TOP OF DOCSTATEMENT OF FRANK AULT, EXECUTIVE DIRECTOR, AMERICAN RETIREES ASSOCIATION; ACCOMPANIED BY COLLEEN M. TIMPANO, HOSPITALMAN, FIRST CLASS, U.S. NAVY (RET.); MAJ. NEITA ARMSTRONG, U.S. MARINE CORPS, AND PATRICIA BRUCE, NATIONAL DIRECTOR, WOMEN IN SEARCH OF EQUITY
STATEMENT OF FRANK AULT
Mr. AULT. Mr. Chairman, members of the committee, I am Frank Ault, a retired Navy captain and naval aviator. I have been the Executive Director of the American Retirees Association for the past 9 years. The ARA was formed in California in 1984 for the exclusive purpose of addressing the inequities in the Uniformed Services Former Spouses Protect Act which here and after, I'll call ''Foospah'' (FSPA) to get away from the tongue tangler. I'll summarize my written statement in 5 minutes although that is far less than what is needed to shine some light on a subject which has generated so much heat, namely military divorce.
We certainly admire and appreciate the courage and initiative of the Veterans' Affairs Committee which is exemplified by the willingness to hold these hearings. Congress has tiptoed around this subject for 15 years. And right now, it's being given even more foot dragging time by section 643 of the Defense Authorization Bill for Fiscal Year 1998 which directs the DOD to study the subject and report not later than 30 September 1999. This means that there will be no legislative action in 1999. Since 2000 is an election year, the earliest we could expect anything from Congress under the course now set is 2001, and that's much too long. We hope that one of the outputs of these hearings will be things which will permit the DOD to expedite its report. We further hope that members of Congress will look at the urgency of the problem here and move before 2001 to do something about it.
Because it is poorly crafted, the FSPA's inequities may be attributed, in about equal measure, to what it says as well as to what it doesn't say. I could go into a recitation of its many inequities but they are cited in my written testimony. I do, however, want to discuss a consequence of the law which results in its most egregious abuse.
Page 20 PREV PAGE TOP OF DOC The root of the problems military members are having with FSPA originates with the classification of military retired pay as a ''pension,'' which it, provably, is not. If you have any questions about that and you need corroboration, you can check with the U.S. Supreme Court, the General Accounting Office, the Department of Defense, the Internal Revenue Service, and any bankruptcy court.
When the word ''pension'' is mentioned, the minds of the American Bar Association and it's host of domestic relations lawyers shift, immediately, to thoughts of ''equitable distribution,'' which is a matter to be addressed separately from any consideration of alimony or similar forms of spousal support. Note that the FSPA does not classify military retired pay either as property or a pension. It says merely that it may be treated as property in a divorce action.
If I were pensioned by Westinghouse, I wouldn't have to remain subject to involuntary recall to work at the whim of the company. I wouldn't have to continue to comply with the bylaws of Westinghouse. If I went to work with General Electric, Westinghouse wouldn't have voice in the determination of my salary. And if I committed a crime, Westinghouse probably would not terminate my pension. Contrast that with the conditions under which a military member receives retired pay and, above all, ask if the Westinghouse pension ceases to exist at my death. Mr. Willick, military ''pensions'' are different.
Then picturea situation where after my pension was divided through an equitable distribution, that portion allocated to me is further tapped as a source of alimony and child support up to and, sometimes beyond, 100 percent of my share. That's what's happening to military retired pay, but not to a Westinghouse pension.
If we recognize military retired pay for what it has always been and still is, reduced pay for reduced current services and an integral part of the military compensation system, then the word ''pension'' has no validity and the abuses which it has engendered go away: leaving, incidentally, a still quite lucrative business, in divorce court, for ABA members.
Page 21 PREV PAGE TOP OF DOC Congress created this mess and Congress should clean it up. It can do this by restoring fairness and equity to the military divorce process while still protecting the interests of ex-spouses. Mr. Chairman, your sponsorship of H.R. 2537 was a courageous and considerate step in the right direction and we're grateful for it. We both know, however, that H.R. 2537 will go nowhere in the 105th Congress and we also know why it won't.
While Congress has exhibited in publicI emphasize ''in public''a pervasive reluctance to reform the FSPA, there have been enacted, since 1982, 23 changes to laws affecting military divorce. All of these, except two, have been effectuated by sub rosa amendments to mainstream legislation without public hearings or debate. Eighteen of these have benefited ex-spouses, one has benefited military members, (and that merely to correct a congressional oversight where the intent expressed in the conference report wasn't codified,) and four of them were about equal. I've been told that if the FSPA is ever amended, however, there will have to be a quid pro quo, meaning something for both sides. Mr. Chairman, there's been a hell of a lot of ''quid;'' it's time for some ''quo.'' Military members aren't looking for a win in divorce court, sir, we'll settle for a tie. The score is, at present, ex-spouses 18, military members, 1.
Thank you, sir.
[The prepared statement of Mr. Ault appears on p. 90.]
The CHAIRMAN. Thank you. Thank you, Mr. Ault.
STATEMENT OF COLLEEN M. TIMPANO
Ms. TIMPANO. Mr. Chairman
Page 22 PREV PAGE TOP OF DOC The CHAIRMAN. Ms. Colleen Timpano, USN Retired.
Ms. TIMPANO. Mr. Chairman and members of the committee, my name is Colleen Timpano. I am a retired Hospital Corpsman First Class, USN, Navy. Thank you for the opportunity to appear here today to invite your attention to the problems of military women who get divorced.
As the number of women in uniform continues to grow, so will the problem. I will summarize my written testimony which I ask to be included in the record of these hearings.
Most of the problems to which I allude can be attributed to the Uniform Services Former Spouse Protection Act which, I believe, was poorly conceived and its sponsors, apparently, narrowly focused on civilian females married to male military members. They evidently ignored the fact that enlisted female military members would be impacted by this law also. As a result, they are like me, who have completed honorable careers in the service of their country, suffered trauma of divorce and found that they would not get all of their retired pay that they expected to receive. This is because of the law which permits a divorce court judge to require them to share it with an ex-husband who, in many cases, doesn't need it or use it to provide the icing on the wedding cake of his next marriage. Worst, that ex-husband will continue to receive payments for life regardless of his marital history or of possible criminal conduct.
My personal experience is that 5 years after enlisting into the Navy, I married a male shipmate who had two children from a previous marriage and, as it turned out, a drug abuse problem for which the Navy gave him a general discharge after 7 years of service. This made me the principal wage earner of my family. Using my Navy pay and the income of some moonlighting jobs, I also paid the living expenses while financing my husband's college education and a few ill-fated business ventures.
In 1982, we had a daughter of our own which made us a family of five. I will spare you the account of my husband's conduct throughout except to say that it involves sporadic employment, extra-marital affairs, drug abuse, and jail.
Page 23 PREV PAGE TOP OF DOC My husband was always an unwilling participant of my career changes of duty stations. I had to balance my time between a demanding career and dysfunctional personal life of a domineering husband and a controlling partner. Any impact my husband had on my career was negative not positive.
It is fair to ask why I stuck with it. I suppose the answer is simply because of the children and because I couldn't see a reasonable way out.
Finally, in 1991, we started talking legal separation. This has ultimately resulted in a divorce finalized in December 1994. At no time during my 20 year career did the Navy tell me that there was a law called Uniformed Services Former Spouses Protection Act and explained to me how it might affect my life in my retirement. The divorce court judge knew about it, however, and awarded my husband 30 percent of my retired pay, for life. I did get one break that I will not have to start paying him until our daughter, now living with me, either finishes high school or reaches the age of 19. In the meantime, he has remarried and the payments he will eventually receive will continue for life.
Boiled down to the fundamentals, what we have here is a case where a male military member who forfeited his right to retired pay by unsatisfactory conduct, but is now collecting it anyway from a female member who did qualify.
My daughter and I are now living below the poverty level in my mother's home. I'm attending college in order to prepare myself for a future without a badly needed part of my retired pay.
Why can't this law be changed so that it is fair to both parties to a divorce. Why should someone married to a military member be treated differently in a divorce court from other American citizens. This isn't a male, female issue. This is an issue of fairness. It doesn't appear that the members of Congress who voted for this law thought about enlisted military members, and certainly not female military members. It is high time this oversight is corrected.
Page 24 PREV PAGE TOP OF DOC Thank you.
The CHAIRMAN. Thank you.
And next we have Major Armstrong of the United States Marine Corps.
STATEMENT OF NEITA ARMSTRONG
Major ARMSTRONG. Good morning. Mr. Chairman, and members of the committee, I am Major Neita Armstrong, the Korea Area specialist for 1st FSSG, Camp Pendleton, CA. Thank you for the opportunity to appear here before you today. I will summarize my written testimony and ask that it be included in the record of these hearings.
I am not here to represent the Marine Corps, but the men and women of all uniform services. My experiences span military, civilian, and life as a military spouse and mother. I represent your silent constituency. Jumping the chain of command is frowned upon, and it is difficult for us to determine when it's okay to voice our opinion. Our freedom of speech is limited. We cannot campaign or make political statements in uniform. So rather than face the possibility of overstepping our bounds, we take the hand we're dealt and say nothing.
What military person when tasked with a difficult or dangerous job would say, I can't, or I won't, or complain. We're used to living with less and tolerating more. If the military had not maintained this type of discipline, neither of us would be here today. We trust you to make the right decisions; to look out for our welfare as we look out for our country's. For every letter you receive from a military member there are tens of thousands who would like to write.
The daily transition from the military mind set to the domestic is often difficult. On duty, we are great at mission focus; this can be carried to the point of excluding anything personal. We work to the point of exhaustion, sleep for a few hours and start again. Our work ethic is often perceived as abandonment by the civilian spouse, which leads to other problems and often divorce.
Page 25 PREV PAGE TOP OF DOC Some have tried to convince Congress and the American public that this is a male-female issue. It is not. There are women in the military too and our promotions are based on how well we do our jobs, not our marital status. Yet the States have been allowed to interpret the Uniformed Services Former Spouse Protection Act, so that my contributions as a military's wife are more valuable than my contributions as a Marine officer. According to the law, I am vested in 12 years worth of my husband's retired pay since he is eligible for retirement. Yet, I am vested in nothing based upon my own 17 year military career. I must serve 20 years to receive anything.
The truth is, that my responsibilities as a Marine involved greater hardship to me in service to my country, than to the inconveniences I ever experienced as a wife. I find it disheartening that Congress views my worth and right to entitlement, more highly based upon my status as a wife than as a Marine. How can an hour in the commissary be equal to an hour in combat?
I am held to a higher standard. I am sworn to protect, defend the Constitution of the United States with my life. I must maintain strict physical standards. I am subject to the uniform code of military justice. I am told what to wear; how to wear it; what I can eat; when I can drink; and I can have my liberty secured. I am told where to live; how to act; whom I can be friends with; whom I can make love to; and who I can marry. And if I violate these regulations, I can be incarcerated. These things are necessary for the good order and discipline of the military. They apply to me, not my spouse.
My best friends are military spouses. I do not want to minimize their daily challenges. Some of them are the salt of the earth. Marriage between two loving, supportive people withstand the test of time and the challenges of military life. They are not the people I'm talking about. These laws will never affect them. Yet, while there are many good and supportive spouses, there are also those who are not. The civilian spouse can do things for which I would be court martialled, and still be guaranteed payments after divorce.
Page 26 PREV PAGE TOP OF DOC The current law provides for a windfall to the former spouses. I know of a colonel married five years and divorced early in his career. After he retired, his ex-wife sued for her share of his retired pay, not at the rank he held at divorce, but laying claim to every promotion he received during the 20 years since they separated. With all we endure, with all the hardships we do to get promoted, how can you credit a former spouse for the military member's success? The Supreme Court ruled that our retired pay is a reduced pay for reduced services and couldn't be divided for good reason. Most military members, the American Bar Association, and Congress, don't understand that military retirement pay is not a pension. It is paid at the pleasure of the Government and can be terminated.
Someone asked if I am a victim myself. Absolutely. I'm a victim every time I see the anguish in a Marine's face. The emotional drain divorce takes on them and the helpless frustration with this one-sided legislation. For them divorce is never final. I challenge you to right the wrong and pass legislation that is there for both sides. Thank you.
[The prepared statement of Major Armstrong appears on p. 99.]
The CHAIRMAN. Thank you, Major.
Our last witness on this panel, Mrs. Patricia Bruce, national director, Women in Search of Equity.
STATEMENT OF PATRICIA BRUCE
Ms. BRUCE. I thank you for the opportunity to present to you our views and comments regarding various issues that affect our military members.
The lack of clarity of the Uniformed Services Former Spouses' Protection Act, causes a great deal of misinterpretation by State courts. This ill-defined law places military members and their former spouses in a situation where there is no consistency among military divorces. Issues of utmost importance are the treatment of disability pay, survivor benefit plans, remarriage, and the need for a statute of limitations.
Page 27 PREV PAGE TOP OF DOC Under Federal civilian systems, Federal retirees have access to more than one survivor benefit plan in order to provide financial security for a second spouse upon the death of a retiree. The second spouse of a military retiree is not afforded the same protections for old age security as spouses in the civilian Federal sector, even though the second spouse may have been married to the retiree longer than the first.
Civilian Federal plans are statutorily clear in providing a statute of limitations for dividing retired pay. Not so for military retirees. Because of this, State courts are currently reopening final decrees, sometimes up to 10 or 15 years after the divorce, to award a share of retired pay and property to long-divorced former spouses, to include retroactive payments.
While Congress has no control or jurisdiction over how the State courts divide retired pay, Congress does have control over the use of Federal compensation, as well as administrative mechanisms in the disbursal of Federal compensation and benefits. This fact is emphatically demonstrated throughout the enactment and application of Federal law governing Federal retirement plans, and their former spouse protection sections.
The present treatment of military retired pay is inconsistent with treatment afforded Federal civilian retirees under central intelligence agencies and foreign service retirement laws. The law governing how military retired pay is treated in divorce is not even remotely comparable to those Federal civilian plans, and should at the very least, be consistent with foreign service and CIA, whose duty assignments have been likened by Congress to be very similar. By altering the scheme under which military retired pay is divided in divorce by bringing military retired pay in line with CIA and foreign service, the problems inherent within the broad decision-making authorities of the States would be eliminated.
While this is a very emotional and complex issue, Congress has a distinct opportunity to correct the inequities that face our military in divorce by aligning the division of military retired pay and divorce awards with that of other Federal plans. Many of the issues of concern to military members and former spouses could be resolved by this realignment. Realignment would eradicate the problem surrounding remarriage, statutory entitlement, statute of limitations, duration of marriage requirements, jurisdictional issues, and violations of the military member's protection under the Soldier and Sailors' Civil Relief Act.
Page 28 PREV PAGE TOP OF DOC The discriminatory divergence between civilian Federal and military laws as they pertain to divorce could be expunged, enabling all military members and former spouses to know that their divorces are treated in an equal manner with their civilian Federal counterparts. The discrimination rampant from one military divorce to another due to the capricious laws of the 50 States will be erased, and equal justice under the law will prevail.
There is simply no reason why we should treat men and women who serve honorably in our uniformed services, any less favorably than men and women who serve in the foreign service or CIA. On behalf of our military members, active duty, reserve, retired, and national guard, we thank you for your consideration of this much-needed oversight. Thank you.
[The prepared statement of Ms. Bruce appears on p. 107.]
The CHAIRMAN. Thank you, Mrs. Bruce.
Are there questions? Any questions?
Thank you very much for your testimony. You made it very clear that there needs to be some changes made and we may ask you to respond to some written questions if you would for the record, later on.
Mr. AULT. We'd be pleased to, Mr. Chairman.
The CHAIRMAN. Thank you sir. Thank you. If we could have panel three come up.
I will remind you that your entire statements will be included in the record. Our first witness is Joyce Raezer, senior issues specialist at the National Military Family Association. You may proceed.
STATEMENTS OF JOYCE RAEZER, SENIOR ISSUES SPECIALIST, NATIONAL MILITARY FAMILY ASSOCIATION; DORIS MOZLEY, CHAIR, COMMITTEE FOR JUSTICE AND EQUALITY FOR THE MILITARY WIFE, AND VIRGINIA KAY WARD, BOARD MEMBER, EX-PARTNERS OF SERVICEMEN/WOMEN FOR EQUALITY
Page 29 PREV PAGE TOP OF DOCSTATEMENT OF JOYCE RAEZER
Ms. RAEZER. Thank you, Mr. Chairman. The National Military Family Association appreciates this opportunity to speak on the issue of garnishment of military and retired pay for family obligations.
Garnishment of active duty military pay for family obligations is most frequently done to provide child support. NMFA strongly believes that servicemembers have at a minimum, financial responsibility for their children. Each of the services have strong statements about servicemembers' responsibility to provide for their families. However, non-military parents without court orders often find it difficult to make the system work for them. Each service needs to make it clear to all military legal offices and commanding officers that they have a responsibility to assist the non-military parent in obtaining child support. Non-military parents should be strongly encouraged to obtain court ordered child support, or written agreements that will be honored by the Defense Financing and Accounting Service.
We believe that the services must take the responsibility for counseling the non-military parent on the ramifications of not having a court order for child support before a servicemember retires.
Active duty and retired pay are also garnished to provide alimony in cases of divorce. Since awarding alimony is a purview of the State courts, it seems to NMFA that the only action that could be taken by the Federal Government is to protect further the amount of active duty pay that can be garnished by such courts. Such action might affect child support and garnishment for other just debts.
In most cases of divorce that occur after a member retires, the amount of alimony awarded is based on the income of the servicemember from post retirement civilian employment. NMFA is aware of cases where alimony has been awarded on an almost permanent basis to circumvent the prohibition on dividing any part of disability pay as property. However, as alimony, it stops if and when the former spouse remarries.
Page 30 PREV PAGE TOP OF DOC NMFA is aware that some retired servicemembers and some former spouses have concerns about the equity of certain provisions of the Spouse Protection Act, or the application by State courts of some provisions. We believe that, as presently written, FSPA provides reasonable safeguards for both the servicemember and the former spouse. Because of the actions by some State courts to circumvent the intent of FSPA, we suggest in our written statement certain modifications to the law were it to be addressed by the Congress.
We are also aware that the current legislation would, if it became law, significantly change FSPA. NMFA strongly believes that military retired pay should continue to be able to be treated as property by State courts, and as such not be affected by the remarriage of either party. Although most military spouses are unable to vest in pension plans, some few, thanks to military spouse preference in DOD civil service jobs, have been able to accrue civil service retired pay. The proliferation of 401(k) plans has allowed some spouses to take at least their own deposits in the plans with them when they are forced to transfer employers due to a military move.
In community property States, the civil service retired pay, and the 401(k), would be divided as property. Upon remarriage of both parties, servicemembers would keep their portion of the spouse's civil service retired pay or 401(k). Under the legislation before Congress, however, former spouses would lose their portion of military retired pay. This would be neither fair nor equitable.
Military spouses give up a great deal of control over their own lives to the Federal Government when they marry servicemembers. They're told when to move, where to move, and how many of their possessions they can take with them. The current pace of deployments and the long work hours of servicemembers, even when they are homewe call this the ''they only sleep here syndrome''means that almost all the needs of the children and the home fall on the shoulders of the military spouse. They drive the carpool, handle trips to the doctor and dentist, wait for the plumber, supervise homework, often while holding down a job of their own.
Page 31 PREV PAGE TOP OF DOC The number of military spouses in the work force today mirrors that of their civilian peers, but little attempt is made to ensure a spouse's career progression when a military family is ordered to move. With a 13 percent active duty pay gap and housing allowances that are 5 to 7 percent behind actual costs due to caps, spouses don't have the luxury of delaying employment in a new location until they find a position in their chosen field. They must accept whatever employment is immediately available just to make ends meet, just to help the servicemember support the family.
Most military families enter retirement with little, if any, savings. If they own a home it's normally very highly mortgaged. The only thing of financial value most have at retirement is military retired pay. How can this not be treated as property? Thank you very much.
[The prepared statement of Ms. Raezer appears on p. 113.]
The CHAIRMAN. Thank you, Ms. Raezer.
Ms. Doris Mozley, Committee for Justice and Equality for the Military Wife.
STATEMENT OF DORIS MOZLEY
Ms. MOZLEY. Thank you, Mr. Stump. I thank the Committee on Veterans' Affairs and the Honorable Bob Stump for inviting me to speak here today before this distinguished panel.
By way of introduction, I'm Doris Mozley, a 20-year Navy wife, divorced from retired Captain Paul David Mozley, Medical Corps, U.S. Navy Retired, after a 30 year marriage. I have been actively seeking to improve the legal security for military wives since 1980, when I wrote to each member of the Supreme Court, urging it to rule in the McCarty case that military pensions be categorized as community property, and to mandate a pro rata split at divorce. I'm still waiting for a reply. I've been working since that time, now 18 years, in an effort to make it safer to serve our country as a military wife.
Page 32 PREV PAGE TOP OF DOC Our committee has had some success but more should be done by Congress to ensure that all divorcing military wives are treated fairly and similarlyit's very importantin domestic matters pertaining to military divorce, no matter what State the divorce is in. Unfortunately, this is not the case today because often what a wife receives of her earned pension share depends on her ability to raise money to hire competent legal counsel, having the will to act to protect herselfand many don'tthe vagaries of State law, and all too often, biases of domestic relations judges.
A good example is that of Linda Field, story attached, a faithful wife of 24 years whose husband, according to court record, left her for another relationship. Even though court testimony proved that he went on out of town trips with his new friend whom he characterized at the trial as his business partner, and spent many nights at her house, Judge Allen Crow, domestic relations judge of Calhoun County, Alabama, ruled that such behavior on the husband's part did not rise to the level of proof of adultery. Well, it makes a big difference in Alabama.
Linda received no part of the military pension she had helped to earn. Linda now works in the Ft. McClellan Commissary stacking groceries for a little more than minimum wage, has no benefits from her job, and is facing the prospect of living on a meager social security benefit of a check after she is no longer able to work. Her former husband, by contrast, is enjoying all of their jointly earned pension as well was his new relationship. To those who say that military wives already have ''enough protection,'' this case occurred 12 years after the passage of the Former Spouses Protection Act, and was heard by a divorce judge who publicly stated that he ''did not believe in pension sharing.'' Also, see attached, an article from the ''Equitable Distribution Journal'' for a good example of a lawyer's gross incompetence from past years.
I could give the committee more examplesI know plenty of them, as I said, I've been working in this area for 18 yearsbut I do not believe that anyone believes in the throwaway military wife system which these two examples epitomize. The question arise as to how these two cases and other similar ones, relate to collecting alimony and child support. The answer is that divorce is much more likely to occur if a military member thinks there is a chance he can beat the system, thereby making it unnecessary to collect child support and alimony.
Page 33 PREV PAGE TOP OF DOC As the attached article shows, nearly one-fourth of all children in this country now grow up without fathers. The disintegration of the American family is a danger to the very foundations of our society and should be discouraged by every public means.
I may be overly pessimistic about the future of our country, but I wonder if the coming generations of American young men will be willing to sacrifice themselves in a war as the noble young men of past generations, when so many children today do not have fathers around to help teach them virtuous living and a duty to sacrifice for the higher ground. To use an analogy, studies have shown that one of the most important variables in the reduction of crime is the certainty of punishment, not the severity of penalties. I believe the same is true with military pension sharing. If a military member knows for sure he will have to divide with the wife who helped him earn it, there will be a reduction in the incidence of military divorce which society so desperately needs.
In summary, I believe it is in society's interest to protect the military wife who serves, with a presumption to entitlement as the American Bar Association and the AARP recommend, thereby reducing the rate of divorce as well as the necessity for collecting alimony and child support. I also believe there will be fewer family breakups if military members know for sure that they will have to share the major asset of a long military marriage with the wives who helped them earn it, the military pension.
And as I said, I've been working in this area 18 years. I've written an awful lot of stuff. It was hard, and I've had a lot of it published in military papers because my objective was to try to influence military members as well as Congress. I understand that everybody on Capitol Hill reads these papers. I had not even read one when I was a military wife, so I started and we've had some success and I've enclosed a lot of articles from papers. Of course, I don't have the time to go in and you don't have the patience here anyway, but to show you what experts think of what is going on in our country today. The disintegration of family, the neglect of children, the abused. All this deriving from divorce. What we need to do is enact laws that will tend to diminish. It seems so simple.
Page 34 PREV PAGE TOP OF DOC [The prepared statement of Ms. Mozley, with attachments, appears on p. 120.]
The CHAIRMAN. Thank you, Mrs. Mozley.
Our next witness, Ms. Virginia Ward, board member of the Ex-Partners of Servicemen/women for Equality.
STATEMENT OF VIRGINIA WARD
Ms. WARD. Good morning, Mr. Chairman, committee members, and ladies and gentlemen. I am Kay Ward, a member of the Board of Ex-Partners of Servicemen and Women for Equality, otherwise known as EX-POSE. I am also a former military spouse of a 30 year marriage.
With regard to this hearing, it is our understanding that the concern is primarily that of garnishment of benefits paid to veterans for child support and other court ordered family obligations. We are not totally clear just what is in question here. However, what is clear to us is feedback that we get from former spouses that many aspects of military divorce are not equitable.
Judging from correspondence we have received from our members, it is our opinion that an investigation is in order concerning just exactly what is defined as a service-connected disability by the Veterans' Affairs. We have women writing to us telling us that their former husbands appear to be in very good health, they're working full-time, and yet, they are receiving large percentages of their retirement income from the VA. Our members tell us that their former spouses will threaten them by saying they will get part of their retirement as disability in order to deprive them of what they have been awarded in a court order.
Page 35 PREV PAGE TOP OF DOC Situations such as this are not only unfair to former spouses, but they make light of countless legitimate sacrifices made by so many of our service men and women. They are an affront to the decisions made by judges at the State level.
One of the reasons service-connected disability payments are so very attractive to former service men is that they are tax-free. Another reason is that disability is deducted before it is paid to a former spouse from what the State court had concluded to be property. His disability status reduces her court-awarded property share.
Our members have also informed us that very often their share of retirement pay will be reduced because of changing disability status, and they are unable to determine why this reduction has occurred. They cannot obtain any information about this reduction because the Privacy Act prohibits DFAS from divulging the source of the reduction. Clearly, what constitutes service-connected disability needs to be further defined before any legislation can proceed. EX-POSE believes that the Department of Veterans Affairs should be fair to all persons involved in these difficult family matters. Thank you.
[The prepared statement of Ms. Ward appears on p. 131.]
The CHAIRMAN. Thank you, Mrs. Ward.
Are there questions of any members at this time? If not, we thank each one of you for taking the time to be here today and for your testimony. Thank you.
If we could now have the fourth panel to come forward please.
First witness on this panel, Mr. John Thompson, Acting General Counsel, Department of Veterans Affairs. Mr. Thompson.
STATEMENTS OF JOHN THOMPSON, ACTING GENERAL COUNSEL, DEPARTMENT OF VETERANS AFFAIRS; LT. GEN. NORMAN G. LEZY, DEPUTY ASSISTANT SECRETARY OF DEFENSE, MILITARY PERSONNEL POLICY, DEPARTMENT OF DEFENSE
Page 36 PREV PAGE TOP OF DOCSTATEMENT OF JOHN THOMPSON
Mr. THOMPSON. Good morning Mr. Chairman, and members. With me this morning is Bob White, who's an Assistant Director of the Compensation Pension Service, Department of Veterans Affairs.
There have been discussions this morning of Federal statutes which generally prohibit the garnishment of VA benefits to satisfy debts owed to private individuals. The sole exception, as has been mentioned this morning, is that the VA disability compensation received in lieu of military retired pay can be garnished in order to satisfy court ordered child support or alimony obligations. In these cases, only that portion of the disability compensation representing waived retired pay is subject to garnishment.
Our payment systems don't permit us to say how many garnishments are being honored by VA at any one time. However, we conducted a survey in 1992, indicating that only 93 garnishment orders had been processed by the Department during the preceding year.
It's also been mentioned that VA benefits, including even compensation received in lieu of retired pay, are also protected from court-ordered divisions of property upon veterans' divorces. However, the United States Supreme Court has ruled that State courts are not precluded from setting child support obligations at such levels that veterans would necessarily have to use some of their VA compensation in order to honor those obligations.
Garnishments are handled at VA regional offices across the country in a coordinated effort involving our legal counsel, our adjudication staff, and finance staffs. We are not aware of any systemic problems in the processing of those orders.
To complete the picture, the unavailability of garnishment in most cases with respect to VA benefits, is relieved somewhat by the availability of administrative apportionment. VA regulations are designed to ensure that there is an equitable division of veterans' benefits where VA beneficiaries are failing to meet their obligations to support their spouses or children. Our apportionment decisions are based on a balancing of needs of the veteran and the apportionment claimant. Income and expenses for both parties are carefully weighed and VA attempts to balance their respective needs. There are currently nearly 23,000 cases in which running awards of VA benefits of all kinds are being apportioned to spouses for children.
Page 37 PREV PAGE TOP OF DOC Mr. Chairman, that concludes VA's prepared remarks.
[The prepared statement of Mr. Thompson appears on p. 139.]
The CHAIRMAN. Thank you, Mr. Thompson.
Next, we have Lieutenant General Norm Lezy, United States Air ForceDeputy Assistant Secretary for Military Personnel Policy in the Department of Defense. General Lezy.
STATEMENT OF LT. GEN. NORMAND LEZY
General LEZY. Thank you, Mr. Chairman, and members of the committee. Thank you for the opportunity to appear before you this morning to discuss garnishment of benefits paid to veterans for child support and other court-ordered family obligations. This morning I am accompanied by Mr. Rodney Winn, who is the Assistant General Counsel, Garnishment Operations from the Defense Finance and Accounting Service.
The Department of Defense has long been an advocate of encouraging parental child support and is committed to ensuring that child support obligations are met. For more than 20 years the Department of Defense has been required to garnish the pay of retired military members to enforce child support and comply with the support of recent improvements in the laws and enforcement of parental child support.
Title 42 of the U.S. Code, Section 659 provides that the Department of Defense, upon receipt of a court order, shall garnish retired pay for alimony and child support. Similarly, Title 10 of the U.S. Code, section 1408 requires the Department to make payments from a member's disposable retired pay based on a divisional property if it is specifically provided for in a qualifying civilian court order. It is the Department's policy to fully comply with these statutory requirements. The Defense Finance Accounting Service is responsible for implementing these provisions.
Page 38 PREV PAGE TOP OF DOC The Department of Defense has begun a comprehensive review of the Uniformed Services Former Spouse's Protection Act as mandated in the National Defense Authorization Act for 1998. The Secretary of Defense is required to report to Congress on the results of this review not later than September 30, 1999. Let me just tell you a little bit about what this review will encompass, Mr. Chairman and committee members.
The review will compare the protections and benefits and treatment afforded under Federal law to military members, former members, and former spouses, with such benefits provided to civil service employees and former employees of the Federal Government and their former spouses.
Additionally, this review will also consider the experiences of the Uniformed Services in administering the law: the adequacy and effectiveness of legal assistance provided; experiences of military members, former members, and former spouses in the application of the law by State courts, including the interpretation of State courts of applicable Federal State statutes; and all matters presented in today's hearing.
I can assure you that considerable effort will be expended to seek the views of those having interest in this issue both from inside and outside DOD, to include DOD departments, that is the services and agencies such as DFAS, the Office of Personnel Management, the State Bar Associations, those tax-exempt organizations involved in the representation of current or former military members and spouses, and also the general public.
In fact, taking a cue from Congress I note that you're heavily involved in using the Internet. Hopefully, by next month we'll have a world wide web designed to capture individual views on this key issue.
In reviewing some of the issues for this testimony, Mr. Chairman, I noted way back in 1981 when Congressman Nichols was Chairman of the Personnel Subcommittee and they were getting ready to address this issue, he described it as a very complex and very emotional issue. And after sitting here and listening to the testimony this morning and reviewing the history, it hasn't changed much. Perhaps some would say, ''Well, why will the Department take so long to do this?'' It's not just because our suspense date, so to speak, is September of 1999 as granted by the House National Security Committee and the Senate Armed Services Committee.
Page 39 PREV PAGE TOP OF DOC I am convinced, after spending time looking at this. I talked to people who have been living and working in this environment for a lot longer than I have, and two things I found impressive: one, everybody agrees that this needs to be done. It needs to be done earnestly and it's going to take us time to do it to do it right.
That's the commitment we'll make. We will do this right and then be in a better position by the end of this study to provide what we feel will be some meaningful recommendations on where to go on this issue.
[The prepared statement of General Lezy appears on p. 142.]
The CHAIRMAN. Thank you, General. Will some of the procedures that you're going to use, will that include public hearings and testimony from individuals or organizations?
General LEZY. At this time, sir, the plan does not call for public hearings. I think the way the game plan is laid out is we're going to request it in writing by extensive use of this Internet system, as I told you. But the door is still open if we need to do face-to-face.
The CHAIRMAN. I know there's been some criticism about the September 30, 1999 time for this to be submitted to the Congress. But, as you mentioned, I hope it's done right. Better be a little late and do it right.
General LEZY. Yes, sir.
The CHAIRMAN. It is a very complicated subject, even very controversial as I observed this morning.
Mr. Thompson, does the administration support the existing law which generally prohibits garnishment of VA benefits for child support? Does the administration support existing law?
Page 40 PREV PAGE TOP OF DOC Mr. THOMPSON. The administration has not recommended any changes in existing law. We're not advocating any changes.
The CHAIRMAN. I would take that to mean then that they would support the prohibition against the garnishment of benefits for child support.
Mr. THOMPSON. We have not advocated a change. We're satisfied with current law.
The CHAIRMAN. Thanks. Are there questions from members for any one on the panel?
Well, gentlemen, thank you very much. We appreciate you taking the time to testify today. We may submit some questions to you later on for the record. Thank you.
Our next panel, panel 5, if they would come up, please, moving right along, the last panel for the day.
Gentlemen, thank you, and your entire statements will be made a part of the record.
First to testify, Mr. Krebs, manager of legislative affairs in the Air Force Sergeants Association. Mr. Krebs.
STATEMENTS OF JOSHUA W. KREBS, CHIEF MASTER SERGEANT, USAF, RET., MANAGER, LEGISLATIVE AFFAIRS, AIR FORCE SERGEANTS ASSOCIATION; SERGEANT MAJOR MICHAEL F. OUELLETTE, DIRECTOR OF LEGISLATIVE AFFAIRS, NCOA; MARK H. OLANOFF, LEGISLATIVE DIRECTOR, THE RETIRED ENLISTED ASSOCIATION, AND RICK SURRATT, ASSISTANT NATIONAL LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS
STATEMENT OF JOSHUA KREBS
Mr. KREBS. Mr. Chairman and members of the committee, we were pleased to receive your request to participate in these proceedings. The Air Force Sergeants Association which represents the enlisted, active and retired, men and women of all components of the United States Air Force and their family members.
Page 41 PREV PAGE TOP OF DOC This hearing provides a rare, courageous opportunity to fairly examine a situation that's been cloaked in emotion, built upon a clear misrepresentation of the military lifestyle, and generally avoided by Congress for over 15 years, all at the expense of military retirees. Indeed, rather than fairness or justice for all parties involved, the Uniformed Services Former Spouses Protection Act focuses only on promoting the enrichment of former military spouses because of the automatic, without risk or need nature and lifetime duration of the award. We would hope that as a result of this hearing, the process to address significant inequities targeted uniquely against military veterans may begin.
The previous panel members have covered the inequities of the current law and to save time, we'll not recover that ground. The Air Force Sergeants Association supports the reforms to the Uniformed Services Former Spouse Protection Act proposed in House Resolution 2537, and believes that these changes are long overdue. The financial situation caused by the FSPA is unfair and particularly onerous for retired non-commissioned military members. Usually, former spouses obtain financial security by virtue of their own income, the income of their new partners, or a combination of two incomes.
By contrast, many military members who's retired pay has been divided must support second families. Keep in mind that the military veteran, if retired, is generally reentering the job market in middle age, many with untransferable skills.
Mr. Chairman, we ask you use your considerable influence to change the law to one of fairness to all parties concerned. Thank you for your time.
[The prepared statement of Mr. Krebs appears on p. 148.]
The CHAIRMAN. Thank you, Mr. Krebs.
Our next witness is Mr. Ouellette, director of legislative affairs, the Non-Commissioned Officers Association. Welcome.
Page 42 PREV PAGE TOP OF DOCSTATEMENT OF MICHAEL OUELLETTE
Mr. OUELLETTE. Good morning, Mr. Chairman. On behalf of the 160,000 members of the Non-Commissioned Officers Association of the United States of America, I would like to thank you for the opportunity to present testimony before your committee.
NCOA president and CEO, Roger W. Putnam, asked me to extend his appreciation to you for bringing this issue of the FSPA to the table for open discussion.
Mr. Chairman, instead of reading, for a while here let me talk to you just briefly. Mr. Krebs hit it right on, that we are very concerned about FSPA from the enlisted side of the house. They're the ones on the low end of the pay scale. You know, if you're splitting $3,000 a month in retirement pay, that's a whole lot different than when you split $1,000 in retirement pay as opposed to an officer retiree's pay. You then must understand that people serving today are working under entirely different retirement systems that were in effect at the time FSPA was passed. Consequently, they're serving for a reduced benefit that if the Former Protection Act provisions are applied, are going to further reduce what the individual has in life.
And we're extremely concerned about that and then at the same time you're seeing the changes in the benefits structure where military retirees are being asked to pay for more of their benefits in terms of health care, in terms of dental care, in terms of all the other items. So, an enlisted retiree caught up in the FSPA or in a divorce, many times is just left destitute and even if they are able to continue with their life, they find themselves even unable to protect their family.
Mr. Chairman, as a military retiree, I am personally offended that the FSPA even exists simply because of its implications. It implies that all military retirees are so irresponsible, untrustworthy, and even deadbeat, that a law had to be passed to instruct State courts to treat them differently in divorce actions in order to ensure they meet their responsibilities and resulting settlements.
Page 43 PREV PAGE TOP OF DOC Mr. Chairman, nothing could be further from the truth since the very foundation of military service centers around the requirement to meet both professional and personal responsibility. Failure to do so in both cases results in termination of service.
Based on the wide range of discussion delivered this morning, it does not appear that FSPA can be tweaked in order to meet expectations on both sides of the issue, and not violate the basic provisions of the law.
Although NCOA has indicated support for total repeal of the Act, perhaps the best course of action this committee could endorse would be to amend the Act, specifying that income levels of VA disability and military retirement pay would be used to determine alimony and child support towards, on the part of the military retireesawards on the part of the military retiree. Such action would appear to level the playing field for all future military retirees and provide an opportunity for current retirees involved in FSPA settlements, to return to court if they so desire, to revalidate the alimony requirements of their divorce decrees. NCOA believes such action to be a fair solution to the property issue of FSPA.
In closing, Mr. Chairman, if something is not done to correct the inequity of FSPA in its current form, military retirees can be insured of only one thing: that the future spouse or spouses of ex-military spouses will forever and ever speak very highly of them. Thank you.
[The prepared statement of Mr. Ouellette appears on p. 157.]
The CHAIRMAN. Thank you.
Mark Olanoff, Legislative Director for the Retired Enlisted Association.
STATEMENT OF MARK OLANOFF
Page 44 PREV PAGE TOP OF DOC Mr. OLANOFF. Good morning, Mr. Chairman and members of the committee. Thank you very much for allowing the Retired Enlisted Association to speak.
Mr. Chairman, I'm not going to read my statementobviously you have it. But I am going to give you a couple of observations based on what I've heard already today.
I'm not a lawyer but I think I understand the concept of Federalism, and based on what I've heard from all the testimony in here this morning, I don't think it could be more clear that the message that you should get from this hearing is we cannot have 50 ways of doing this. And that's why it is a Federal question, and I commend you for your leadership for introducing H.R. 2537.
I have received many phone calls and also many e-mails from our members and other military retirees, that talks about what their specific problem is. The gist of most of the correspondence and phone calls that I've received is although thewe do not come here to say that people who owe child support should not pay the money. Obviously, we agree with that. However, it appears based on the way States courts are interpreting some of these statutes, that VA disability is being used to pay some of these awards.
And I think one of the problems as you are aware of, because you have advocated this change, Mr. Chairman, is the issue of concurrent receipt of retired pay and VA disability which is now prohibited. So the military retiree has to make a choice when they receive this disability, that they have to give up a portion of their retired pay. So it really isn't a great advantageous income benefit when they have to make that choice. And I would just kind of say that we hope that in the future Congress that we can have some reform on concurrent receipt legislation.
But I do want to give you one example that I received from one of our members, was the fact thatand as I said, I'm not a lawyer and I'm not here to say what's right and what's wrong. I'm just here to report what I've been told and what I see.
Page 45 PREV PAGE TOP OF DOC One of our individual members, besides the division of property, the former spouse was awarded the house and the VA was responsible for the mortgage of that house. And the individual reports to me that after seven months of him not living there, this former spouse stopped paying on his VA mortgage. So of course, he didn't know this until the VA went after him. So now not only is he paying for whatever the court has added, now he has to apply for bankruptcy because he doesn't have the money to pay for the mortgage payments.
So that's one of the examples that I have to tell you, Mr. Chairman. Again, I'd like to thank you for introducing H.R. 2537. I'd also to like thank Representatives Stearns, Peterson, and Doyle of this committee who have also co-sponsored that legislation. And I would also urge other members of this committee to look at this legislation and support the Chairman. This is a bipartisan bill. This is not a political bill at all.
The other thing that I'd like to bring to your attention, Mr. Chairman and the committee, is that this is also an equity issue. We've heard some discussions before of VA disability versus retirementand I'm sure my next witness here who is from the DAV will probably have something to say about thisbut if this issue was just clearly a non-retired veteran who was drawing a disability, this question would not even be discussed because it's not property.
So there are some inequities and as I stated earlier, from the witnesses that we've heard about whether you're in civil service or whether you're military or within certain segments of civil service, the law is not really being applied the same. And as I stated, that's why I think there needs to be a Federal answer to this question so every State does this the same way to be fair.
The last thing I have to say to you, Mr. Chairman and the Committee isthere was a mention of the Internet site, and I attach this with my statement and I think this really makes a mockery of this entire problem. But someone has actually built an Internet site which I've attached, that has the motto, ''Ladies aim high.'' And basically what this is, Mr. Chairman, and members of the committee, this is a step-by-step description of how you get married and figure out the ways to divorce a military member and make money. And I think this is really terrible. This is really a mockery of what this is all about. It's already in my statement.
Page 46 PREV PAGE TOP OF DOC Thank you very much, Mr. Chairman, for allowing me and the Retired Enlisted Association to present our views.
[The prepared statement of Mr. Olanoff, with attachment, appears on p. 166.]
The CHAIRMAN. Thank you, Mr. Olanoff.
Our next witness and final witness for the day, Mr. Rick Surratt, the assistant national legislative director for the Disabled Veterans' Association.
STATEMENT OF RICK SURRATT
Mr. SURRATT. Mr. Chairman, and members of the committee, good morning. I am Rick Surratt with the Disabled American Veterans.
One question we are addressing in this hearing is whether there is a problem relating to the way courts are treating veterans' benefits when they make awards for spousal or child support. In the DAV's view, the answer to that question is yes, there is a problem.
First, let me say that where disability compensation is received in lieu of military retired pay, the laws are complex. Without going into the details, in the final analysis the veteran has no protection against a court ordering that he or she make support payments from the compensation he or she receives by virtue of a waiver of military retired pay. Under some circumstances the courts can enforce these support awards by garnishment.
Aside from that tangle of laws, no veteran who receives disability compensation or other veterans' benefits is protected from unwarranted court awards of his or her benefits to third parties. Through an administrative process, VA is authorized to apportion a veteran's benefits to a separated spouse and dependent children not in the veterans custody when warranted. And we have no complaint with that.
Page 47 PREV PAGE TOP OF DOC Congress also enacted provisions which we believe exempts veterans benefits from awards of spousal or child support by the courts. That provision is found in Section 5301 of Title 38 United States code. In broad and all encompassing language, it exempts veterans' benefits from attachment, levy, or seizure, by or under any legal or equitable process whatever, either before or after receipt by the veteran. Some State courts have held that this language means what it says: observing that its intent was to prevent the diversion of veterans' benefits to persons other than veterans.
Other State courts conveniently created an exception to the exemption for awards of spousal and child support. They have twisted the clear language of this law in all manner of ways to avoid the exemption it provides veterans. And unfortunately, the Supreme Court of the United States, has now completely changed its earlier interpretation of the law to go along with what the States are doing.
Some of these courts have even required veterans to pay part of their disability compensation to divorced spouses in the form of alimony, although divorced spouses are entitled to no veterans' benefits under veterans' laws. That is particularly egregious and violates the clear intent of Congress.
We don't suggest that disabled veterans should be able to avoid their responsibility to support their dependent children. Neither do we believe the Federal Government should let the State courts take veterans' benefits without some constraints. The Federal Government should exercise some control over the taking of veterans' benefits to ensure that any awards to third parties are warranted and proper, to guarantee that veterans' disability compensation payments will not be diverted to others for whom they were never intended, or who need them less than the disabled veteran.
For example, we don't believe a disabled veteran should be required to pay part of his or her disability compensation to an able-bodied ex-spouse as alimony. We don't believe a spouse should be able to abandon a veteran because service-connected disability renders that unfortunate veteran mentally ill, and then have the court award a large portion of the disability compensation to that spouse upon divorce.
Page 48 PREV PAGE TOP OF DOC The Federal Government should also exercise control over the taking of veterans' benefits to ensure uniformity among the States. With the States now interpreting the law to suit their own notions of what should be, there is no uniformity. There are Federal safeguards to protect veterans and their benefits from predatory practices in dealings with third parties such as educational institutions, and lending institutions in home sales. Congress should do the same for divorce actions.
Veterans are no less vulnerable to unjust loss of their benefits in divorce actions than in the purchase of a home, for example. The States have shown little desire to protect veterans, and clearly demonstrated that they have little appreciation for the primary purpose of veterans' benefits.
I've covered that in the DAV's recommendation for changing the law in my written statement so I won't go into any more detail here. We urge the committee to consider our suggestion and we appreciate your interest in this issue.
That concludes my statement, Mr. Chairman and I'll be happy to answer any questions.
[The prepared statement of Mr. Surratt appears on p. 178.]
The CHAIRMAN. Thank you, Mr. Surratt.
The gentleman from Louisiana, Dr. Cooksey.
Mr. COOKSEY. Question, thank you Mr. Chairman. Incidentally, I would point out that you have a very brave Chairman, as is obvious by the absence of a lot of my colleagues. I think they would rather face the Vietcong or Saddam Hussein than the two groups that are on opposing sides of this issue today. SoI'm ex-Air Force, he's ex-Navy. They deserve some credit.
I question, if this is a Federal law, would these issues be heard before adjudicated and a Federal court?
Page 49 PREV PAGE TOP OF DOC Mr. SURRATT. Not usually. I'm not a lawyer but unless it's a Federal question between
Mr. COOKSEY. Where will it be sir? I'm asking. I don't know the answer.
The CHAIRMAN. I beg your pardon?
Mr. COOKSEY. What is the answer to that?
Mr. SURRATT. There's the diversity of citizenship, it would be in some cases but generally it's the State court that hears domestic relations matter.
Mr. COOKSEY. That's correct. Well, my concern about national legislation I was talking to a Federal judge recently and he was criticizing those of us in my party for passing too much legislation that requires Federal judges to get involved in issues that they think are not germane to theirlooking at you know, other issues.
I think this is a very important issue. I know when I was in the Air Force and I was a newlywed at the timeand I'm still married to the same person for 31 years, and I did get married while I was on active duty. So Air Force weddings maybe last longer, I don't know. But anyway, I was surprised that a guy that I knew that was also in flying status, that came in, he came into Texas, in Austin from Arizona. He told me, he said he was transferred there because he said that Texas was a man's State and it was better for a man to get divorced in Texas than Arizona. I am from Louisiana and we really have good laws for women. So it varies from State-to-State and I'm sure it all changes.
I think that the message though that you would get from the members of this committeeand in deference to them, we all had some other meetings that I was at and some of them are at now probablyis that we want to do what is fair to both parties. I'm particularly sensitive to veterans that have disabilities and problems there.
And on the other hand, as a father of three daughters all of whom are in their 20's, one of whom is getting married, I'm also very sensitive to the women's side of the issue. I really think it's contingent upon the parties involved to work out something that will be fair, and civil, and equitable, and consider it to the spouse that on their wedding day you thought was the most wonderful person in the world. And your children which I hope you still think are the most wonderful people in the world.
Page 50 PREV PAGE TOP OF DOC The CHAIRMAN. Thank you, Doctor.
Mr. SURRATT. Congressman, I'd like to comment on one thing you said about the Federal judge. I think the message that everyone is getting here is that if the legislation or the law were more clear we might actually cut down on some litigation. This must be a lawyer's dream, I mean when you look at the laws and how they interrelate. So perhaps that wouldn't be going against his caveat if Congress were to simplify these laws and make them more equitable.
Mr. COOKSEY. He was not discussing this issue in particular. The day I saw him he was having to write an opinion on an inmate who was suing the judicial system and the prison system because he did not get false teeth and he felt like he had been discriminated against, and another one that did not get into a school situation. So those were the issues he was talking about. But Federal judges like to think that they look at big issues. To me this is a big issue but it still needs to be worked out in an equitable manner.
Mr. OLANOFF. Dr. Cooksey, if I could just make a quick response. I agree with Rick about the Federal question, that it belongs at the State courts. But one of the examples I have with me today is an individual who was reassigned to Hawaii and eight days after he moved into base housing his family left and went back to Illinois. And then he detailed all of his specific problems of the State laws of Illinois and what he couldn't do and what he wasn't allowed to do. And that's the reason why this is a Federal question and the issue needs to be one solution.
You know, we're notI don't think any of us are here to advocate that it needs to be the military retirees' favor. Both sides need to have proper protection. But I think based on what I've heard today and what I hear from my membership, is that we have 50 states and everything is not done the same way and certain people are protected and others are not.
Mr. COOKSEY. I see some ladies in the back nodding their head in agreement. Is there then agreement from people from both sides of this issue that we do need one set of rules, one law?
Page 51 PREV PAGE TOP OF DOC Mr. OLANOFF. And enforced the same way.
Mr. COOKSEY. Right. Okay. That answers my question. I'll send a message to my friend, this Federal judge to
The CHAIRMAN. Earlier today, one of the witnesses stated there would not be an action on this bill today and he is absolutely correct, because of the pending DOD study, the lack of any action on the part of the Senate. And certainly we have less than 20 days, legislative days left in this session.
But let me assure you, if I am fortunate enough to return to the 106th Congress and to serve in this position, we will address this problem at our earliest possible time. Mr. Ouellette.
Mr. OUELLETTE. Mr. Stump, I want to thank you very much for the courage to bring this thing up. We, probably all of us collectively, knew that there was not probably going to be any action taken this year. The strong point is, I think from NCOA and many other groups, and I think some of the other witnesses said it, nobody told us.
People are serving today, and if anything what this hearing is going to do, with the resulting and the education portion of this, is probably being able to expand for the members that FSPA does exist and what are the implications, how does it work, what is the impact on their lives? They need to know that.
There are many, many of my members out there that are serving on active duty that are happily married that could care less about the Former Spouse Protection Act. In fact, they probably think it's a good idea until they get caught up in a divorce action and then the ball really starts rolling and they really get upset about it when they find out the full details.
But I know NCOA compliments you for taking a strong stand and at least being able to rise to the occasion and try to do something about the situation that is just absolutely devastating to enlisted. Thank you.
Page 52 PREV PAGE TOP OF DOC The CHAIRMAN. Thank you, sir. If there are no further questions. Let me thank all the witnesses that appeared today. We thank you for taking the time to be with us, and for your statements.
If there are no other questions, the meeting stands adjourned.
[Whereupon, at 11:57 a.m., the subcommittee adjourned subject to the call of the Chair.]