Getting divorced is a complex process, and it is especially complicated in the military.
Most pitfalls for service members lie in the division of certain government benefits. There are particular restrictions for veterans that govern how their benefits are split during a divorce, as military or veteran benefits may or may not be distributed.
What Military Benefits Are Considered Marital Property?
A military pension may be considered shared property that must be divided in the event of divorce. In general, marital property that does not meet the criteria of separate property is split at divorce. Property obtained either before or after a divorce is referred to as "separate property." Property acquired during the marriage is usually considered shared property unless it was received as a gift or inherited entirely in the spouse's name.
New federal restrictions in 2017 also altered how pensions are distributed throughout all 50 states. The pension is currently locked in time as of the separation, divorce or annulment date. The purpose of this federal regulation was to prohibit an ex-spouse from receiving a higher-than-normal pension sum. For example, if the service member was a sergeant at the time of the divorce but is now a master sergeant, the ex-spouse will get a portion of the retirement income based on the lower rank.
Some examples of military benefits that would be considered separate property include Combat-Related Special Compensation (CRSC) and VA Disability Compensation. These payments are considered separate property of the retiree and are not split upon divorce because they involve an injury or medical condition and are not retirement benefits. Similarly, Department of Veterans Affairs disability compensation benefits are not subject to divorce since these benefits are viewed as a particular gratuity provided to veterans with disabilities related to their time in the military as recompense for any diseases or injuries they sustained while serving.
The 20/20/20 Rule
The 20/20/20 rule is often brought up during a military divorce when deciding upon an ex-spouse's access to the same benefits as a military spouse. The breakdown of the criteria that make ex-spouses eligible include:
- Being married for 20 years;
- The military spouse having served for 20 years; and
- The 20 years of marriage overlapping the 20 years of military service.
Should the ex-spouse meet all of these requirements, they will receive access to the same benefits as a current military spouse for the remainder of their life, provided they don't remarry. They will still retain their military ID card, which grants them access to base commissaries and military exchanges. Continuation of Tricare benefits for qualifying spouses is not automatic and must be re-registered under their own names and Social Security numbers. Tricare requires applicants to provide original copies of their marriage certificates, divorce decrees and any other papers proving their ex-military spouse's service or retirement.
According to the Tricare website, eligible former spouses have the same Tricare coverage choices as retired family members up until they remarry or sign up for an employer-sponsored health plan.
The 10/10 Rule
Another rule that is often cited during a military divorce when it comes to awarding military pensions is the 10/10 rule. In short, the 10/10 rule states that, if the marriage lasted 10 years and the service member or former service member served in the military for at least 10 years during that time, the former spouse is entitled to pension payments directly from the Defense Finance and Accounting Service (DFAS). The spouse's attorney must ensure that specific language is included in the divorce paperwork.
The rule addresses only the source of payment to the spouse, which is a direct payment. The spouse gets pension-related payments directly from DFAS, which handles payments for the Defense Department. As a result, the ex-spouse is freed from the need to rely on and wait for payments from the retired service member.
The 10/10 rule generally causes confusion when retired military personnel claim that the former spouse is only eligible for military pension benefits if the pair were married for at least 10 years while they were together serving in the military. The 10/10 rule is only used to determine whether the former spouse will receive payments directly from DFAS instead of the service member or veteran. The 10/10 rule is not used to determine whether a former spouse is entitled to a portion of the pension.
The Uniformed Services Former Spouses' Protection Act
The USFSPA is a statute passed by Congress in 1982 to provide financial protection to some ex-spouses of service members. It permits states to divide military disposable retiree pay as marital property in the event of a divorce. Disposable retirement pay is defined as the total monthly retirement pay, minus:
- Deductions for retirement pay forfeitures following a court-martial;
- Deductions from a military member's waiver of retirement pay as a requirement for veteran benefits;
- Amounts equivalent to retirement compensation under U.S. Code Title 10, Chapter 61 Script; and
- Elective deductions in accordance with U.S. Code Title 10, Chapter 73 Code used for annuities paid to a spouse or ex-spouse in accordance with Title 10, Section 1408 of the U.S. Code.
Further, a former spouse can take out child support or alimony from the military spouse's retired pay; however, it still requires a court order and must pass the 10/10 rule should the award be sent as a direct payment. According to the USFSPA, no more than 65% of a retired military member's pension can be deducted for spousal and child support obligations.
Survivor Benefits Plan Elections
The SBP is an annuity that a retiring service member can elect to ensure that their beneficiary receives a portion of the retired pay after they die. SBP is a specific benefit that the retiree must elect, generally at the time of retirement from active duty or immediately upon receiving their 20-year letter as a reservist, for a spouse, child or anyone with an insurable interest in the retiree.
Even if some service members decide not to sign up for the SBP plan because they have no qualified beneficiaries, they might later get married or have a kid who qualifies for benefits and want to change their election status. Because the reasons for changing one's coverage are few and far between, the SBP election made by service members at the time of retirement is difficult to change. In such a case, a service member would have one year from the date of initial eligibility (marital change, childbirth, etc.) to announce their desire to have their beneficiary covered.
In the case of marriages, there are many different nuances to be aware of, and depending on whether it is a remarriage or not, the election process and coverage amount may be subject to change. To learn more about SBP benefits, check out our article "What You Need to Know About Your SBP Benefits" for more information on your rights and coverage.
Understanding Your Benefits in a Military Divorce
Divorces involving military personnel may be highly complex. It's crucial to know your rights when it comes to your benefits and to seek experienced legal counsel should you have any remaining questions. Even if the marriage lasted fewer than 20 years, the court may nonetheless award a portion of the military member's retirement to the civilian spouse. Every circumstance is unique. In some circumstances, the parties will divide the pension, while in others, one party will cede their pension rights in exchange for other assets after the divorce.
A former first sergeant in the United States Army Reserve and a combat veteran, Anthony Kuhn focuses on the representation of military personnel, federal employees and federal agents at Tully Rinckey, where he is a managing partner.
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