Any marriage can be challenging, but military marriages are especially complicated due to the stress that military service often places on service members and their families. Unfortunately, many military marriages break down, similar to the way civilian marriages deteriorate. However, resolving a military divorce can be more complicated than a civilian divorce due to the nature of military benefits and federal government policies regarding those benefits in divorce.
If you are a service member or the spouse of a service member and expect to divorce in the near future, it’s essential to understand the unique factors you must account for in your dissolution proceedings. While a military divorce will cover many of the same issues that require attention in a civilian divorce, the complex nature of military benefits and legal conflicts between federal and state law can pose challenges for divorcing military spouses.
Divorce and Legal Separation
Legal separation is more suitable for military spouses than divorce, in some cases. However, every couple will have unique needs and concerns, and both spouses need to evaluate whether legal separation would suit their interests better than a divorce. When it comes to legal separation for military spouses, the government generally considers legally separated military spouses as married for most purposes.
A spouse who has legally separated from a service member will retain the ability to carry their military ID card and continue using all military benefits, including Tricare health care benefits and access to military installations, but the issues of the service member’s retirement account and Survivor Benefit Plan (SBP) are resolved in the couple’s legal separation proceedings. Additionally, time spent in legal separation will count toward qualifying for 20/20/20 status for future benefit determinations.
What Is 20/20/20?
Military benefits are typically available to a service member’s spouse for the duration of their marriage. Once the marriage ends in divorce, benefits for the non-service member cease. However, if the spouses were married for long enough to qualify for 20/20/20 status, the non-service member will continue to have access to some military benefits.
The 20/20/20 rule defines 20 years of service, 20 years of marriage, and 20 years of overlap between the service member’s time and the military and their marriage. When a military spouse reaches 20/20/20 status, they are entitled to keep Tricare health care coverage for life as if they were still married. Tricare is generally much cheaper than standard health care plans available to most civilians. In addition, they would retain the ability to keep Tricare until and unless they remarry.
It’s important to note that the 20/20/20 rule is strict. A step down from this would be the 20/20/15 rule, which indicates 15 years of overlap between 20 years of military service and 20 years of marriage. In this situation, the non-service member spouse would only qualify for one year of transitional Tricare coverage, after which they would need to find their own health insurance plan.
GI Bill for Military Spouses
When a service member qualifies for the GI Bill, they can designate their spouse as a beneficiary of their GI Bill benefits, effectively paying for their college tuition. If the couple decides to divorce, the non-service member may keep their status as a GI Bill beneficiary as long as the service member’s spouse agrees.
The Post-9/11 GI Bill does not qualify as a divisible asset in a divorce. Therefore, state courts may not divide GI Bill benefits in divorce, and the non-service member can keep their GI Bill benefits as long as the service member spouse allows them to do so. However, while GI Bill tuition assistance and book stipends do not qualify as income, GI Bill monthly expense stipends do qualify as income for the purposes of calculating child support and spousal maintenance in divorce.
Military Retirement and VA Disability Benefits
When a military service member divorces their spouse, their Thrift Savings Plan (TSP) and retirement account qualify as divisible assets in a divorce. Therefore, the non-service member has the right to roll over their portion of the service member’s TSP into their own rollover IRA account. Similarly, the service member’s retirement pension is also a divisible asset in a divorce.
If the spouses were married for 10 years or longer, the Defense Finance and Accounting Service (DFAS) would continue paying the former spouse’s share of pension benefits directly to them, but if the retirement account qualifies for division with fewer than 10 years of overlap between the marriage and the service member’s time in the military, the service member may be required to remit monthly checks to the non-service member. Military retirement benefits cease upon the death of the retired service member.
VA benefits are not a divisible asset in a military divorce, even if the service member relinquished a portion of their retirement to qualify for VA benefits using a VA waiver. In addition, some states count VA benefits as income to calculate income for child support and spousal support determinations.
Military Family Housing and BAH
Another issue that will require resolution in a military divorce is family military housing and basic allowance for housing (BAH), a military benefit that helps with basic living expenses. The military will only allow family members to live in military housing. After a divorce, a family using military housing will have 30 days to leave the military family housing and must find new living arrangements.
A military service member must continue paying monthly portions of their BAH to a separated spouse when it comes to BAH. Each branch of the military has unique rules for BAH division in legal separation. However, this arrangement ceases upon divorce, and the BAH qualifies as income for the service member to determine child support and spousal support.
Find Legal Counsel for Your Military Divorce
Navigating any divorce can be incredibly difficult in several ways, but the divorce process is often more challenging for military couples. If you need legal assistance to navigate your impending military divorce, it’s vital to work with an experienced Upland divorce lawyer who can help you approach the legal complexities your case is likely to present. The Law Office of Stephanie J. Squires can provide the meticulous and detail-oriented legal representation you need for your impending military divorce. Whether you are a service member or you are divorcing a service member, contact us today to schedule a consultation with our team and learn more about the legal services we offer.