Oklahoma House Bill 1053

Problems with Oklahoma House Bill 1053

Ten (10) Questions about Oklahoma H.B. 1053 of USFSPA Changes

The information on this page highlights some of the problems or questions surrounding Oklahoma House Bill 1053.

The focus is not on whether the USFSPA law in itself should be changed. For information on changing the USFSPA see
USFSPA changes

If you have knowledge of more recent information concerning the Oklahoma H.B. 1053, please contact us so we can improve this page.

• Reprinting: Because this page is constantly updated in an attempt to remain current, no reprinting is permitted.

  ~Please list this url as a source (using the link coding provided at the bottom of this page).

Two versions of Oklahoma House Bill 1053 available to view online

• Oklahoma House Bill 1053, First Session Draft
  with proposed effective date of November 1, 2009.
• Oklahoma House Bill 1053, Second Session Draft
  proposed Mar, 2010 for effective date November 1, 2010.

Oklahoma House Bill 1053… Status as of Aug 2010

• The State Senate failed to vote on the House Bill 1053, thus ending any chances of revising the law this year (2010).
• The bill will need to be reintroduced in the next session in 2011.

  ~June 2010, Oklahoma H.B. 1053 update

Ten (10) Oklahoma House Bill 1053…Questions, Concerns, Problems

1. Oklahoma House Bill 1053 states:

   Payments received under the division of retired pay to be follow rules similar to those for alimony, as in:“The court shall provide in the divorce decree that payments of disposable retired pay to the former spouse shall terminate upon:

   1. the voluntary cohabitation, as defined in subsection C of this section, with a member of the opposite sex, or
   2. remarriage of the former spouse.”

   As written, Oklahoma H.B. 1053 proposes a big loss for the former spouse:

   • Division of Retired Pay: Oklahoma would be using USFSPA as justification to divide military retirement pay as “marital property” but then switch to their own state law to, in a sense,
     override USFSPA, by declaring the “property” to cease to exist upon remarriage of the former spouse.The designated agent is under federal law (which has no remarriage stipulation) and thus, one would think, the designated agent is not obligated to comply
     and should reject a state decree ordering cessation of a retirement pay division upon remarriage.

     The logic in this concept is similar to a state ordering the designated agent to distribute a former spouse retired pay division for a marriage lasting
     under ten (10) years. The designated will reject this type of state court order*, based on the fact that it complies with federal (not state) law.

     (*In cases of less than 10 years of marriage, court awards for division of pay must be paid directly by the service member, not by the designated agent.)

   • Unforeseen Consequences:The intricacies of military retirement benefits and divorce are woven like a spider web…

     ~and cutting one strand often has detrimental effects on the rest of the web…

     Aside from the Oklahoma proposal to terminate the former spouse receipt of a portion of retired pay,
     the terminology above (if enforced) will have a detrimental effect on former military spouses participating (or wishing to participate) in:

     1. The Survivor Benefit Plan,
        the right a current former spouse has to continue receiving his or her share of division of military retired pay in the form of an annuity
        after the service member passes away.
     • NOTE: While it is technically conceivable that a decree could order the cessation of the division of retired pay,
       yet award continued participation in SBP, it seems illogical. To do so would be saying, “The former spouse is no longer entitled to the
       service member’s retirement pay (due to remarriage), yet, when the service member passes away, the former spouse is still entitled to receive
       an annuity.” The purpose behind SBP is the continuation of receipt of the division of
       retired pay, and the idea of cessation of this receipt (due to remarriage), is connected to the ideas behind the receipt of SBP.
       Former spouse lawyers would have to ensure the language of the decree has a separate provision for SBP, unrelated to remarriage.

      

   • The Unlimited CHCBP:
     For former military spouses to qualify for the unlimited Continued Health Care Benefit (CHCBP) program, they must be receiving a portion of retired pay,
     receive an annuity (participate in SBP), or have a court order to do so (as explained in
     Military Divorce Tips.)Thus, an Oklahoma court order that ceases the former spouse’s receipt of retired pay or SBP will result in the former spouse no longer meeting the eligibility requirements for unlimited CHCBP.

• Oklahoma House Bill 1053 states:

  Retroactive Law: “…shall have retrospective and prospective application with regards to modifications for the purpose of obtaining support or termination of payments pertaining to a
  division of property on divorce decrees which become final after June 26, 1981.”

• Laws should be written so they can clearly be understood and comments in blogs, chats, and elsewhere show this language to be extremely confusing
  to both service members and former spouses.
• Will remarried former spouses thus be in debt for all payments received retroactive to their remarriage date? If not, then what is the purpose
  in the use of the date 1981? If they are terminated with no retroactive collection, then the bill should just state “…terminate effective the date of
  modification in accordance with Section G (2).”
• Will service members and their former spouses amend their taxes for all applicable years following the former spouse’s remarriage?
• Will remarried former spouses receiving annuities under SBP law have to pay them back to the US Government?
• Even if Oklahoma notifies the designated agent to stop the SBP annuity for a former spouse participant (who remarried after the service member
  has passed away), it is questionable whether the designated agent (under federal law) would have to comply.
• Will the cohabitating former spouse participating in unlimited health care lose the right to participate in the program? What if there are unpaid medical bills?
• Oklahoma House Bill 1053, (2nd Session Draft) states:

  “Pursuant to the federal Uniformed Services Former Spouses’ Protection Act, 10 U.S.C., Section 1408, a court may treat disposable
  retired or retainer pay payable to a military member either as property solely of the member or as property of the member and the spouse of the
  member as follows: if the duration of the marriage coincided with less than ten (10) years of the military service, the court shall consider the
  retirement or retainer pay the property solely of the member. If the duration of the marriage coincided with ten (10) or more years of the
  military service, the court may treat the retirement or retainer pay as marital or separate property.”

• • False statement as written: It implies the USFSPA distinguishes a ten (10) year point and in fact, it does not. The sentence should be
    broken into two, as in:
  • “Pursuant to the federal Uniformed Services Former Spouses’ Protection Act, 10 U.S.C., Section 1408, a court may treat disposable
    retired or retainer pay payable to a military member either as property solely of the member or as property of the member and the spouse of the
    member. If the duration….”

  And the bill would continue to declare the specifics required by the state of Oklahoma. As written, new lawyers and persons unfamiliar with USFSPA
  will be misled into thinking federal law requires the ten (10) years for division of retired pay.

   

• Two-faced on Separate Property: Why is the proposed language of the Oklahoma House Bill 1053 a closed issue for under ten (10) years and
  yet a negotiable issue when over ten (10) years? It would seem logical that if Oklahoma chooses to pass a law disallowing division under ten (10)
  years, then the corresponding part of the law would declare it to be “marital property” for over ten (10) years. But instead the language offers
  a choice, the option for the court to “….treat the retirement or retainer pay as marital or separate property.”
• Oklahoma House Bill 1053 states:

  “There shall be a two-year statute of limitations, beginning on the date of the final divorce decree, for a party to
  apply to the district court for division of disposable retired or retainer pay, if any.”

•  
  • Not in accordance with federal law: This contradicts DoD FMR Vol 7B Chapter 29, which is followed by the designated agent:

  “A former spouse may apply for payment anytime after the court has issued a court order enforceable under the USFSPA.”

• Oklahoma House Bill 1053 states:

  “In any divorce decree which provides for periodic alimony payments, the court shall plainly state,
  at the time of entering the original decree, the dollar amount of all or a portion of each payment which is designated as support and the dollar
  amount of all or a portion of the payment which is a payment pertaining to a division of property.”

  • Fixed Amount? This language causes much confusion as written. The language sounds like the intention is for all Oklahoma military divorce decrees
    to be written in fixed amount terms (the worst choice of options for a former spouse) for both alimony and payments pertaining to a division of
    property.

    ~Yet, it is prefaced with “In any divorce decree which provides for periodic alimony payments….” which implies a former spouses receiving a
    division of retired pay (but not alimony) will not fall under this paragraph (?), and thus still have the option to use the formula or hypothetical
    formula options for computation of division of military retired pay.

• No COLAs: To set all Oklahoma military divorce decree language at a distinct dollar amount (a fixed amount) means former military spouses
  will no longer receive any Cost of Living Adjustments (COLAs) after divorce date. This type of language in the law favors the service
  member outright.
  • And if retroactive, who will calculate (and who will pay this person completing the computations) the past COLAs?
• Oklahoma House Bill 1053 states:

  “If a state court determines that the disposable retired or retainer pay is marital property,
  the court shall award an amount consistent with the rank, pay grade, and time of service of the member at the end of the
  marriage.”

• • Date of Divorce Retired Pay Figure: This is the worst possible choice of language to choose for use in a decree from the perspective of the former spouse.
    A law should not be biased in favor of one party but instead be fair and equitable. There are many variations possible when deciding on the
    figure to use in the computation of retired pay. The ultimate language to be used in a decree should be a result of negotiations after all
    factors of a couple’s unique situation are considered. No two divorces are exactly alike, so how can Oklahoma choose language that so clearly
    avoids consideration for the former military spouse?

   

• Oklahoma House Bill 1053 states:

  “An order for the payment of money pursuant to a divorce decree, whether designated as support or designated as pertaining to a division of
  property shall not be a lien against the real property of the person ordered to make such payments unless the court order
  specifically provides for a lien on real property.”

  • Indemnification: Lawyers for the former spouse might specify in a decree that should funds become unavailable through the designated agent for whatever
    reason, the former spouse would be paid by any other funds available to the service member (in a sense an indemnification statement).

   

• Oklahoma House Bill 1053 states:

  “The Adjutant General shall ensure that all Oklahoma National Guard personnel are briefed…” annually and upon
  reenlistment concerning the USFSPA rules.

  • Only Nationa Guard? Why is Oklahoma only keeping the National Guard informed? Why would it not be all
    service members? And, why not all service member’s spouses as well?

   

• Oklahoma House Bill 1053 states:

  “The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground
  to modify provisions of a final judgment or order for alimony as support…As used in this subsection, the term cohabitation means the dwelling
  together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to
  law, or not necessarily meeting all the standards of a common law marriage.”

  • Alimony: While this deals with alimony, one should take note that this is an attempt to make cohabitation equivalent to marital support. This assumes the former spouse is receiving support from the
    “relationship” which may not be the case. If one were to go down this path, there should be at minimum some requirement of proof of support,
    which will then raise the question of, “How much support is considered enough to cease the support provided by the service member?”
• Opposite sex? Cohabitation?
  • Why does the law seem to assume a private relationship means receipt of financial support?
• How will a “private conjugal relationship” be proven?
• Why is H.B. 1053 limited to the relationships between a man and a woman? Does the law not apply if one party leaves the
  marriage because of sexual preference and chooses to “cohabitate” with a same sex partner?
• Military Divorce Benefit Loss: Former spouses should also note that if they negotiate to receive alimony instead of a division of retired pay, they will lose the
  opportunity to participate in
  Survivor Benefit Plan
  and Unlimited CHCBP
  as explained in Military Divorce Tips.
• The first draft of the Oklahoma House Bill 1053 called for: seven
  “considerations for review by the state court in determining classification of
  the pay as marital or separate property…”
• • Greedy Lawyers? There are accusations on the internet blogs, chats and commentary that lawyers are against this bill for the sole purpose of
    making money for themselves. On the contrary, passing a new law with seven new items to debate would run up legal fees even higher (for both the
    service member and the former spouse). The accusations against the lawyers seem to be unfounded.

    (*This particular language of seven considerations has been dropped in the Session 2 version of the proposed Oklahoma House Bill 1053.*)

• ---

  Oklahoma House Bill 1053 Summary

  Regardless as to whether one is for or against the Oklahoma House Bill 1053, before proceeding further to request approval,
  the above questions and/or problems show the need for revision of the current language.

  If you have knowledge of more recent information concerning the Oklahoma H.B. 1053, please contact us so we can improve this page.

  ---

  Oklahoma House Bill 1053 – Blogs and Viewpoints

  • Oklahoma H.B. 1053 Mar 2009 Discussion from Oklahoma Women’s Network
  • Oklahoma House Bill 1053
    Oct 2009 Follow-up from Oklahoma Women’s Network

   

• Will Oklahoma be first to discriminate against military spouses in divorce? OKPolicyBlog Sept 2009
• Oklahoma House Bill 1053 USFSPA Changes News Oklahoma, March 2009: Oklahoma veterans fight for change in divorce law “If this bill becomes law, Oklahoma will be the first state to require the courts to view military retirement pay differently.”
• • Oklahoma House Bill 1053 USFSPA Changes  News Oklahoma, March 2010: “Oklahoma bill targets military divorce”

   

• Oklahoma’s “USFSPA Changes” House Bill 1053: PensionRights.org Calls explains the Oklahoma House Bill 1053 which states considering seven factors before determining whether and how to divide a military pension in divorce.
  See Oklahoma house bill H.B. 1053.
• Oklahoma H.B. 1053 Comments from Topix:
  on the story of Gov. Brad Henry, Oklahoma Legislature honoring state military veterans.
• Oklahoma House Bill 1053 extends unfairness to military families The Norman Transcript
• Oklahoma House Bill 1053 Veterans Affairs Disussion Board
• Oklahoma House Bill 1053 Wopopular Disussion Board

• Organizations Concerned about Oklahoma House Bill 1053

  • The Oklahoma Bar Association Family Law Section
• The American Bar Association,
• The Pension Rights Center
• The National Women’s Law Center.