Abstract
Division of retired pay is one of the most emotionally fraught elements of military divorce. For the servicemember, retired pay compensates decades of service to his country. For the civilian spouse, it remunerates the same decades of domestic labor that enabled such service. Federal restrictions on division of military retirement have spawned confusion and litigation for more than thirty years. Today, former spouses remain extremely vulnerable to this unique and “dire plight.”
In civilian divorce, state courts apply state law to fairly distribute marital assets. Military retirement and disability benefits, however, fall within the scope of the Uniformed Services Former Spouses’ Protection Act (“USFSPA”). This federal statute hedges the power of state courts by exempting military disability benefits from division upon divorce, thereby limiting property awards to retired pay alone. For example, a former spouse may enter into a property settlement agreement that entitles her to half of the servicemember’s retired pay. But because an eligible servicemember must waive from retired pay amounts equal to his disability benefits, the former spouse might later discover that the value of her property settlement award has been drastically reduced, or even eliminated, as a result of a unilateral decision by her ex-husband to opt for waiver.
In 2017, the Supreme Court of the United States prohibited state courts from ordering a servicemember to reimburse his former spouse in the event of a reduction in her agreed upon property award due to waiver. However, neither the Court nor Congress has considered whether a servicemember may consent to reimbursement as a term of his divorce agreement. The continuing lack of uniformity in subsequent state decisions has exacerbated the very inequity that Congress sought to cure by enacting the USFSPA. Although this Note argues that the USFSPA permits contractual indemnification, further inroads must be made to protect the property interests of the former spouse to the same extent that her civilian counterpart’s interests are safeguarded. The federal government must restore to state courts the power to cure the “dire plight” imposed upon the former spouse of military marriage as a result of the USFSPA.
Recommended Citation
Zoe Speas, The Fiction of Equitable Distribution: Military Divorce, Disability, and the “Dire Plight” of the Former Military Spouse, 82 Wash. & Lee L. Rev. 427 (2025).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol82/iss1/9