Same-Sex Military Divorce and the USFSPA

Will the USFSPA extend to a Gay or Lesbian Military Divorce?


If you follow Former Military Spouse on Google+, you saw where we shared the article about Ashley Broadway and her spouse, Army Lt. Col. Heather Mack. Could this be the first step toward policies handling same-sex military divorce?

Broadway, a lesbian, was upset about the Ft. Bragg, N.C. Officer’s Spouse club (a private organization) denying her membership (due to lack of ownership of a military spouse ID Card).

After much publicity, the Officer’s Spouse club changed their stance on same-sex military couples’ membership and offered Broadway a special guest membership — which she turned down. (Full membership would permit her to vote on club matters.)

Article highlights:

“Stephen L. Peters II, president of the American Military Partner Assn., which advocates for lesbian and gay military families, called the spouse group’s offer “not only offensive, but ridiculous.”

In a statement, Peters called guest membership “a second-class membership.” If the spouse group now says it does not require a military ID, he said, then Broadway is eligible for full membership.

…Ft. Bragg military officials have declined to intercede, saying the spouse group is a private organization and is breaking no laws.

…The Department of Defense says it has been reviewing military benefits for same-sex couples following repeal of “don’t ask, don’t tell” in September 2011, with an eye toward expanding the benefits.”See the Broadway story.

Will DEERS, Dependent Military Spouse IDs, and division of retirement pay come next?

The 1996 federal Defense of Marriage Act (DOMA) bans federal recognition of same-sex marriages, so how will states treat military divorce benefits?

Can states apply the federal USFSPA law to divide military retirement pay in a state recognized same-sex marriage?

Federal law trumps state law, and federal law does not recognize gay and lesbian unions as marriages. However, the USFSPA (federal law) permits state courts to treat military disposable retired pay as divisible property in a divorce, essentially telling states, “Handle military pay division as you see fit.”

“… for military [same-sex] couples with a legal marriage who seek divorce, presumably a state court would divide their property just [as] it would the property of any other married couple, although certainly that is an open question of law at this time.” (Comments from Law Office of Hugh O. Allen, Sacramento, CA)

It seems reasonable that a judge might state “Our state declares this union a marriage, the USFSPA gives us the right to divide retirement pay, we would divide it for a heterosexual marriage, so I will order a division of pay.”

If a state did divide military retired pay in a same-sex divorce, one could assume that DFAS would reject any court order to pay a former spouse with no military dependent ID card; not enrolled in DEERS. To comply with the court order the service member would then have to write a check payable to the military former spouse. Complications begin to arise, one being that there is no tax form generated for the former spouse to report his/her receipt of the taxable military retirement pay.

Getting Creative with Same-Sex Military Divorce

Suppose your viewpoint is that even if the state recognizes the gay or lesbian military marriage, the state cannot divide military retirement pay. How will judges determine what is “fair and equitable” in a military divorce?

It seems lawyers with this viewpoint will still look for ways to be fair and equitable toward the soon to be ex-spouse:

“By law, marital property is to be divided equitably, but not necessarily evenly, in divorce. That’s nearly impossible to do for same-sex couples, said Cheong [a Maine divorce attorney]. If one partner has a military pension or Social Security benefits or any other benefits from a federal job, the other [same-sex] partner would not have any legal right to a portion of that money. Cheong said attorneys handling divorces of same-sex couples often have to look for other ways to divide a couple’s assets.” Portland Press, Maine

9 States Approve Same-Sex Marriage as of Jan 2013

  1. Connecticut,
  2. Iowa,
  3. Maine,
  4. Maryland,
  5. Massachusetts,
  6. New Hampshire,
  7. New York,
  8. Vermont, and
  9. Washington

Tell us what you think

Do you know of any same-sex military couples who have divorced and how it was handled? How do you think it should be handled? What happens if/when DOMA is struck down? Tell us your ideas concerning same-sex marriage military divorce benefits in the comments.


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