be modified by spousal agreement or certain court orders. The rationale for this entitlement legislation was that the majority of Foreign Service duty is overseas and the "Foreign Service tradition of husband-wife 'teams' and the participation of wives in the vital representational activities is still very much alive."

PROVISIONS OF S. 1814

On November 4, 1981, Senator Roger Jepsen introduced S. 1814, the Uniformed Services Former Spouses Protection Act. Under S. 1814 military retired pay can be treated either as the property solely of the member or as the property of the member and his spouse. No right or entitlement to military retired pay is created by S. 1814. The bill does not require any division of retired pay by a State court; nor does it prohibit such division. Treatment of such retired pay-with certain limitations-generally would be dependent on the divorce and property laws applied by the courts of the jurisdiction in which a divorce or other related decree is issued.

S. 1814 imposes three distinct limits on the division or enforcement of court orders against military retired pay in divorce cases. First, the total amount of the disposable retired or retainer pay of a member which the Service Secretary could pay out to satisfy a court order for prospective obligations could not exceed 50 percent of such pay. Second, this bill would not create in the spouse or former spouse any right, title or interest which could be sold, assigned, transferred or disposed of by will or inheritance. Third, the courts could not direct that a service member retire at a particular time in order to effectuate any payment out of retired pay to a spouse or former spouse. Within these limitations, a former member's military retired pay would be subject to court orders issued incident to a divorce, dissolution, annulment or legal separation proceeding. The Service Secretaries would comply with such orders which direct the payment of a portion of that retired pay to a former spouse as alimony, as child support, or as the distribution of marital property.

S. 1814 extends limited health care coverage to certain unremarried former spouses of present or former service members. To qualify for the coverage, the former spouse must have been married to the member or former member for a period of at least 20 years on or before the date of the divorce during which period the member completed at least 20 years of creditable service. The health care is offered for a period of 180 days immediately following the date of the final decree of divorce, dissolution or annulment, provided that the former spouse remains unremarried. Under certain circumstances, health care will be extended by the Secretary concerned for the treatment of a medical condition which existed prior to the end of the 180-day period, but only if treatment for that condition has been provided by the uniformed services prior to the end of that period.

Finally, S. 1814 provides future participants in the Survivor Benefit Plan (SBP) the flexibility to provide for their former spouses. The bill provides that where the service member has not remarried and does not have a dependent child for whom an annuity can be provided under SBP, the member could voluntarily provide an annuity to a former spouse. If the member chooses to pro

vide such an annuity and then remarries, the member would be free to change the earlier designation so as to provide an annuity to the new wife or dependent child, unless the member had made a commitment as part of a voluntary written agreement to designate the former spouse. In that event, the member would have to obtain the appropriate court or other approval before changing the designation. It is the committee's intention that the service member retain the sole right to elect a former spouse as beneficiary of any SBP annuity.

The provisions of S. 1814 reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation. However, nothing in the bill would mandate payments out of retired pay which had been disbursed during the period between the date of the McCarty decision and the effective date of this legislation. The mechanism for direct payment of court orders for alimony, child support and property distribution would apply only to payments of retired pay for periods beginning on or after the effective date of this legislation.

COMMITTEE CONSIDERATION

The Subcommittee on Manpower and Personnel of the Committee on Armed Services held four hearings (September 22, 1981; February 19, 1982; March 10, 1982; and April 29, 1982) on S. 1814 and similar legislation. The following individuals provided oral or written testimony on that legislation:

The Honorable Dennis DeConcini, United States Senator from Arizona.

The Honorable Jeremiah Denton, United States Senator from Alabama.

The Honorable Pete V. Domenici, United States Senator from New Mexico.

The Honorable Mark Hatfield, United States Senator from Oregon.

The Honorable Kent Hance, United States Representative from Texas (19th District).

The Honorable Patricia Schroeder, United States Representative from Colorado (1st District).

The Honorable G. William Whitehurst, United States Representative from Virginia (2nd District).

The Honorable Lawrence J. Korb, Assistant Secretary of Defense (Manpower, Reserve Affairs and Logistics).

Lt. Gen. R. Dean Tice, USA, Deputy Assistant Secretary of Defense for Military Personnel and Force Management.

Major Gen. William L. Webb, Jr., USA, Assistant Deputy Chief of Staff for Personnel.

VAdm. Lando W. Zech, Jr., USN, Deputy Chief of Naval Operations (Manpower, Personnel and Training).

Lt. Gen. Edward J. Bronars, USMC, Deputy Chief of Staff for Manpower.

Lt. Gen. Andrew P. Iosue, USAF, Deputy Chief of Staff for Manpower and Personnel.

Stanford E. Lerch, Chairman, Section of Family Law, American Bar Association.

Robert D. Arenstein, Chairman, Committee on Interstate and Federal Support Laws and Procedures, Section of Family Law, American Bar Association.

Michael E. Barber, Council Member, Section of Family Law, American Bar Association.

Rosemary Locke, Legislative Chairman, National Military Wives Association.

Suzanne Davis, Chairman, Divorce Study Group, National Military Wives Association.

Nancy Abell, President, Ex-Partners of Servicemen for Equality. Captain Henry Palau, JAGC, USN Retired, Deputy Director for Legislative Affairs, The Retired Officers Association.

Sgt. Major C. A. McKinney, USMC, Retired, Senior Vice President for Government Affairs, The Non-Commissioned Officers Association.

John P. Sheffey, Executive Vice President, National Association for Uniformed Services.

Donald L. Harlow, Executive Director, Air Force Sergeants Association.

Tish Sommers, President, Older Women's League.

Donna Reed Wickstrand, American Association of University Women.

Carol Burroughs Grossman, National President, Women's Equity Action League.

THE MILITARY SPOUSE

The committee received extensive testimony from the uniformed services and public witnesses on the contributions and sacrifices made by the military spouse throughout the service member's career. A recurrent recruiting point that is made to a military couple from the time of the spouse's initial entry into the military is that the spouse is a partner in the member's career. The theme of the "military family" and its importance to military life is widespread and well publicized. Military spouses are still expected to fulfill an important role in the social life and welfare of the military community. Child care and management of the family household are many times solely the spouse's responsibility. The military spouse lends a cohesiveness to the family facing the rigors of military life, including protracted and stressful separations. The committee finds that frequent change-of-station moves and the special pressures placed on the military spouse as a homemaker make it extremely difficult to pursue a career affording economic security, job skills and pension protection. Therefore, the committee believes that the unique status of the military spouse and that spouse's great contribution to our defense require that the status of the military spouse be acknowledged, supported and protected.

IMPACT ON RETENTION AND RECRUITING

Witnesses representing the Office of the Secretary of Defense and four uniformed services testified to the significant sacrifices and contributions made by military spouses. All agreed that some form of remedial legislation which is fair and equitable to both spouses was necessary to provide a solution to the McCarty decision.

On March 10, 1982, Dr. Lawrence J. Korb, Assistant Secretary of Defense for Manpower, Reserve Affairs and Logistics, testified that "the Department of Defense has always considered domestic relations matters to be primarily governed by State law, through State courts." Thus, the Department's position is that the limitations of the McCarty decision should be overruled. However, the Department advocated that the powers of the State courts to divide military retired pay should be subject to certain limitations necessary to protect the personnel management requirements of the military services.

Representatives for the Army, Navy, Air Force and Marine Corps testified on April 29, 1982, in support of an equitable solution to the problems created by the McCarty decision. However, they contended that enactment of legislation which permits military retired pay to be treated as property in divorce proceedings could adversely affect future military recruiting and retention, and pose military personnel assignment problems.

The committee notes that until June 26, 1981, a number of State courts traditionally recognized that military retired pay could be dealt with as marital property and divided between the parties. But the committee believed it was necessary to evaluate fully the concerns generated by the Defense Department and military services relative to force management. To that end, the committee requested the Department of Defense to furnish objective data, the results of statistically sound surveys, or any other pertinent information which indicated that prior to the McCarty decision military personnel management needs were adversely affected by application of State property laws and precedents to military retired pay. The committee also requested similar information on the potential for future management problems if S. 1814 were enacted into law. The Department of Defense has not submitted any satisfactory empirical evidence based on reasonable or realistic assumptions concerning divorce proceedings in the State courts to show that during the period prior to the McCarty decision, recruiting, retention and personnel assignment were adversely affected by application of State property laws to military retired pay. Nor has the Department undertaken any surveys to ascertain the percentage of divorced military service members whose interests in retired pay were affected by State law and the extent to which career decisions were altered as a result of any division. Thus, in the committee's view, the Department has not established a data base from which to make projections on the potential impact of S. 1814 on military manpower management.

Further, three of the four military services have not provided any empirical evidence that division of military retired pay in divorce cases has or would adversely affect recruiting and retention.

One service did conduct a survey which asked that all service members questioned assume that they would have their retired pay divided upon divorce and then measured the impact on retention. The committee does not believe that this assumption reflects what occurs in all divorce cases. Indeed, a recently conducted study-reviewing California divorce cases disposed of prior to the McCarty decision-concluded almost just the opposite.1 California is a community property State with a pure no-fault divorce law. Data from approximately 2,000 court records, in-depth interviews with 44 family law judges, 169 matrimonial attorneys, 114 recently-divorced men and 114 recently-divorced women were compiled and analyzed. The study considered the economic aspects of divorce, including the patterns of property, spousal and child support awards. It also analyzed the ways in which divorce settlements have shaped radically different futures for divorced men on the one hand, and for divorced women and their children on the other. Among other things, the study concluded that "pensions are typically awarded to the worker, with an offsetting monetary award to the other spouse. Male and female workers are equally likely to be awarded their own pensions in a divorce settlement. However, since men are more likely than women to hold jobs that allow them to acquire pensions, they are also more likely to be awarded those pensions at divorce."

Based on these considerations and the record developed in the hearings, the committee believes that returning to the State courts with certain limitations-the discretion to deal with military retired pay in divorce cases is a sound prescription for the admitted problems created by the McCarty decision. The committee cannot conclude that this approach would be so detrimental to military manpower management as to warrant retaining the fundamental result of the McCarty decision-that the courts are barred from considering military retired pay in dividing property in a di

vorce case.

FORUM SHOPPING

Department of Defense witnesses suggested changes to the bill to protect against the possibility of "forum shopping" by spouses or members. The term "forum shopping" in this context implies a search for the State jurisdiction with the most advantageous law and procedures in which to commence a divorce proceeding. The most favorable jurisdiction might be a State with which the spouse or member has had little previous contact.

The committee carefully considered the need to restrict the benefits afforded by the bill to protect against forum shopping. However, the committee concluded that existing procedural and substantive protections afford both parties ample opportunity to guard against potential jurisdictional abuses inherent in allegations of forum shopping.

Active duty service members are afforded some procedural protections against forum shopping by the Soldiers' and Sailors' Civil

1 Lenore J. Weitzman, "The Economics of Divorce: Social and Economic Consequences of Property, Alimony and Child Support Awards," 28 UCLA Law Rev. 1181-1268 (1981).

2 Id. at 1209.