The U.S. Supreme Court scorned military wives last June in a decision that wiped out all their pension rights after divorce. This week, those wives will carry their grievances to a Senate Armed Services subcommittee, in what is shaping up as the hottest marital battle in town.
The military wives are carrying the ball, but their success or failure could affect the pension rights of every housewife.
Baldly put, the issue is this: Is a housewife a full, economic partner in her marriage? Or is she a charity case whose support in old age depends solely on keeping her husband's good will?
If she's a full economic partner, she should be entitled -- as a matter of right -- to share in the property accumulated during the marriage. At divorce, her share should be hers to keep.
Most state courts now accept the economic partnership view of marriage and include pension assets as part of the property.
Housewives are not generally treated as 50-50 partners. Except for California and a few other states, most courts award wives something less than half. For example, if a marriage lasted 20 years and her property rights are determined to be, say, 40 percent, she gets 40 percent of the value of the pension accumulated during the years of the marriage (or its equivalent in other property).
The Supreme Court, however, rejected pension division in the only two cases to come before it so far (one on military pensions, one on railroad retirement). It said these particular pensions belong solely to the worker, as a personal entitlement.
The husband, in short, is working for his own retirement security and the housewife is working for the husband. If the marriage fails, her retirement is her own problem, not his.
That Supreme Court decision created two categories of housewives: one with some measure of old-age protection in divorce, and one without. At present, military and railroad-retirement wives are the ones without.
Military wives are trying to persuade Congress to pass a pension-protection law that would undo the Supreme Court decision. Three main proposals are under consideration.
If any of them is passed, it will be an important measure of congressional intent on the property rights of women. It will stand as a precedent in future cases.
If they fail, the Supreme Court might read it to mean that Congress does not want wives to have property rights to their husbands' pensions. That could result in taking hard-won rights away from other women, too.
Women who have careers and pensions of their own may not much worry about the status of their husbands' pensions. But for older housewives, pension rights can make the difference between getting by and getting welfare. Military wives find it particularly hard to earn their own pensions because they must move around too much to stick with any one job.
The simplest pension-rights bill comes from Sen. Dennis DeConcini (D-Ariz.), who wants to return the issue to state jurisdiction. His view is that a military wife, like other wives, should be entitled to whatever property, including pensions, is awarded her under state divorce law.
A bill from Rep. Kent Hance (D-Tex.) carries that principle one step further by dealing with the problem of collecting state-ordered pension distributions as well as alimony and child support awarded against retirement pay. "We need a law providing for a workable payment system for the court orders many of us already have," Vivian Filemyr, national president of Action for Former Military Wives, told my associate, Virginia Wilson.
If a military man moves and quits paying his ex-wife and children, the Defense Department refuses to tell the ex-wife where he is. The Hance bill would guarantee her court-ordered payments by sending her checks directly from the military-payments center.
A more sweeping bill from Rep. Patricia Schroeder (D-Colo.) would guarantee military wives married 10 years or more a pro rata share in their husbands' pensions, along with other rights. Such a law would actually put military wives in a more favorable position than other wives.
So far, the military-pension debate has been capturing the attention of only the men and women directly affected. Male-dominated military organizations uniformly oppose the proposals now in Congress. The Defense Department has yet to be heard from, but the outcome of this narrow battle could affect marital rights everywhere.