Can Oklahoma Change the USFSPA Statute of Limitations?
USFSPA Statue of Limitations
Question: When does a former spouse have to apply for payments from DFAS when awarded a division of a service member’s retired pay?
Answer: The 2009 DoD FMR states:
“A former spouse may apply for payments anytime after the court has issued a court order enforceable under the USFSPA.”
So it is interesting that Oklahoma has proposed Senate Bill 1887 on January 19, 2012, which includes the following USFSPA statute of limitations verbiage:
“There shall be a two-year statute of limitations, beginning on the date of the final dissolution of marriage, for a party to apply for division of disposable retired or retainer pay.”
Should a state law trump federal law?
How can Oklahoma attempt to decide that former military spouses must apply in two years — when the federal government says they can apply at anytime?
To be clear, the issue of this post is not whether there should or should not be a statute of limitations concerning the USFSPA, but the fact that states should not be able to create laws that take away federally provided rights.
Recommendation:
Call your Oklahoma representatives and ask them to disapprove Senate Bill 1887.
View more about the Oklahoma Senate Bill 1887 USFSPA Changes.
UPDATE February 27, 2012: Senate Floor Version Oklahoma SB 1887, As Amended
Oklahoma SB 1887 was amended to delete paragraph F restricting the statute of limitations to two years.
This is an improvement for Oklahoma SB 1887.
You can follow the amended versions of SB 1887. (Click on the tab that says versions.)
You can also read about other concerns with OK SB 1887.
UPDATE April 12, 2012: Ammended & Engrossed Oklahoma House Bill 2286 (HB2286)
April 12, 2012, Oklahoma HB2286 (which also contained references to a two year statue of limitations) was ammended to remove this wording.
This is an improvement for Oklahoma HB 2286.
For more explanations on the various verbiage of awarding the division of military retired pay to a former military spouse, see Military Divorce Tips
I am an ex wife of a marine. Married twenty-fours. I was awarded retirement for the rest of my life. It was a certain dollar amount up until a couple of months, he is claiming he is disable so he could take half of the funds I was receiving. I realize it’s federal law at this point. Does anyone out there know a way around this or experienced this as well?
Former Military Spouse,
Why CAN”T a state pass a law limiting the generous provisions of the USFSPA? As reform advocates are always told by the federal courts, marriage and divorce is a STATE ISSUE, thus the individual states have the right to legislatively place limits on the Act. Under the U.S. Constitution states can pass supplemental statutes to federal laws that are more restrictive than the federal statute.
Yes, this is an interesting topic:
– When does federal law trump state law?
– Can states take away the federal right to apply for a benefit?
– If yes, then why do we take an issue to the Supreme Court for final decision?
Maybe some lawyers will comment on this with references.
A “look-back” statute of limitations is very fully needed ! Here’s why – DFAS, by law canNOT disburse “backpay” to a former spouse under the USFSPA for a property division of military retired pay. But,…..that doesn’t stop a divorce court from ordering the retiree to pay arrearages ! Some former spouses wait 5, 10, 15, even 20 YEARS to make their claim against the former military member spouse’s retired pay ! This unconscionable act by the former spouse has driven many retirees into bankruptcy, homelessness and SUICIDE ! Now do you see why time limits are needed ! ! !
My point was not to debate whether a time limit was needed, but rather whether states can take away a federal right. Federal regulations state the military spouse can apply at anytime, so I don’t understand how Oklahoma can attempt to pass bill(s) that say otherwise.
As I said in the updates, the 2 year reference was deleted out of SB1887 and HB2286. The paragraph still exists in the Committee ammendment added by Fred Jordan on 4/6/2012 to HB1951. (click the ammendment tab at: http://www.oklegislature.gov/BillInfo.aspx?Bill=SB1951 )