How Your Divorce May Impact Your Military Benefits

When the average couple gets divorced, dividing assets and personal property becomes complicated. When a military marriage is ending, it’s even more so because you now have to factor the federal government into your property distribution and settlement. Asset division isn’t your only consideration, however.

Getting married while you or your spouse is in the military entitles you to certain benefits to help support your family’s well-being both from a health and financial standpoint. Your spouse is also entitled to certain benefits as a result of being married to someone who serves his or her country. Divorce can have a negative effect on military benefits for both spouses and you should understand what you are each entitled to.

Retirement pensions are negotiable

As the military member, you do stand to lose part of your retirement pay in your divorce. It doesn’t matter how long or short your marriage has been, your spouse may be entitled to a portion. The good news for you is that your pension gets equitably divided like any other marital asset so if your marriage hasn’t been incredibly long, your spouse is unlikely to get a significant share. It depends upon what you can agree to, or what a judge determines to be fair if you can’t reach a mutual agreement.

Just as mentioned above, as a military spouse, under the Uniformed Services Former Spouse Protection Act you are still entitled to an equitable share of your husband’s or wife’s military pension regardless of length of marriage.

If your marriage lasted for at least 10 years while your spouse served in a branch of the military, then the Department of Defense can be required to make direct payments of his or her military pension to you, ensuring that you receive timely payments.

Benefit considerations for military members

If you receive basic allowance for housing (BAH) during your marriage, you qualify to continue receiving BAH benefits provided that you do not live in government quarters, and you have legal and physical custody over your children after your divorce.

GI Bill benefits are transferrable to children, a current spouse, or former spouse, and may be a tool to use in negotiating your divorce settlement. If your spouse needs educational training to obtain suitable employment that may give you grounds to modify an alimony award, it might be beneficial to transfer that benefit to him or her. Your attorney can give you a better analysis based upon your individual situation as to whether this would work in your favor.

Benefits risks and rewards for former military spouses

Many spouses may be shocked to learn that they are not entitled to maintain any other military benefits without meeting certain criteria. There are two sets of rules that determine the benefits that you will be permitted to keep, if any.

The 20/20/20 rule. This rule requires that:

• You were married to the military member for 20 years
• The military member served 20 years that counts toward retired pay
• The marriage occurred during 20 years of service credited toward retired pay

Provided that you don’t remarry, you will be entitled to Tricare. You will also retain access to the theater, commissary and exchange located on the military installation. This can be a great benefit given that you avoid being taxed on items purchased at the exchange and are limited to a 5% tax at the commissary.

The 20/20/15 rule. This rule requires that:

• You were married to the military member for 20 years
• The military member served 20 years that counts toward retired pay
• The marriage overlapped 15 years of the military member’s service

If you don’t remarry, as a former military spouse under this rule, you are only entitled to Tricare. You have no right to use of any other benefits if your spouse.

Noteworthy benefit information

• Biological and adopted children of the military member are entitled to keep Tricare until they reach the age of 21 regardless of divorce. If the child is in college, he or she may extend Tricare benefits to age 23.
• Whether or not you qualify under either the 20/20/20 or 20/20/15 rule, until your divorce has become final, you are entitled to keep your identification card and utilize all military spouse benefits that you have had access to during your marriage. While you will lose Tricare, you are able to purchase up to 3 years of health insurance coverage through the Department of Defense Continued Health Care Benefit.
• Should you live in military housing, once your military spouse moves out of that residence, you face losing that housing benefit within 30 days. However, you may be entitled to some form of temporary financial support under military policy until you can obtain a court order giving you temporary support.

The knowledgeable divorce attorneys at McCabe Russell, P.A. understand the intricacies of going through divorce when you serve in the military and when you serve at home so that your spouse can perform his or her military duty. To speak with one of our insightful Bethesda family law attorneys call 443-812-1435, or we invite you to reach out to us through our contact form.