When a military family goes through a divorce, unique issues come up. Understanding the complex issues in a military divorce will lead to better decisions and fairer outcomes. This article highlights some of the most common issues. Remember, a military divorce is not exactly like other divorces; it involves additional legal issues.
In what state should you file for divorce?
The law typically allows for the filing of a divorce in the state where either the husband or the wife has a legal residence. The person starting the divorce usually files in the state where he/she lives when that is the state of legal residence of the parties.
Before choosing where to start the divorce, it’s important to know how that state handles the division of military pensions. The federal law governing the division of military pensions is the “Uniformed Services Former Spouses’ Protection Act” (USFSPA).
This federal law says that the state of legal residence of the military member always has the power to divide the military pension in a divorce. So if you file for divorce in a state that is not the military member's state of legal residence, then the court may not have the authority to divide the pension. (Note: The military member can still consent to the court's division of the pension.) Also, some states have other laws that can affect what happens to a military pension. Both of these topics are complicated and require advice from an attorney to avoid traps and problems.
So, before filing a divorce in any state, you need to know how that state might handle your divorce and the division of the military pension.
Can a servicemember slow down the divorce?
Generally, when one spouse "serves" divorce papers on the other spouse, the responding spouse must file a formal response, or “answer,” within a specific number of days. Then the court goes forward with scheduling the next steps in the divorce (such as mediation and/or hearings before the court). However, a federal law can change the normal court time schedule and deadlines if one party is on active duty. This law is the “Servicemembers Civil Relief Act," or SCRA.
The SCRA allows active-duty service members to request a “stay” (that is, to delay the proceedings) a divorce or other claims (such as spousal support, custody, child support, property division and military division) if their duties prevent them from participating in or responding to the court action. (This is true for other types of non-criminal court cases, as well.) The initial “stay” is for at least 90 days. The court can grant extensions after 90 days, but one can’t postpone the divorce forever. The purpose of the "stay" is to delay the court action as long as the military member's duties interfere with his/her participation.
It is important to make a written request for this “stay,” if you need one. Go here to find a sample request and cover letter. Keep in mind that this is only a sample - to show you the types of information the court will need to decide your request. Each state has its own rules of court that may require a different format.
Will the military give me a lawyer?
Each branch of the military has legal assistance attorneys who are located on most bases. In general, these attorneys cannot represent you in your divorce, but they can be helpful. They can also:
- write letters for you
- review and revise legal documents
- negotiate on your behalf, and
- answer questions, including those of your private lawyer, if you have one
The spouse of a service member can also seek the help of a military legal assistance attorney at any base and from any branch of the service. For example, the wife of a soldier can get help from a Marine Corps legal assistance attorney, and the husband of a sailor can get help at a Coast Guard legal assistance office.
Employing a civilian lawyer is the best course of action in most cases. If you are low income, you might qualify for legal help from a non-military legal aid organization. To find legal help closest to you, follow the steps outlined here. Then search for "divorce."
How is child support determined and collected?
The amount of child support in a divorce is determined by state law. It is ordinarily based on the total entitlements (that is base pay, Basic Allowance for Housing, Basic Allowance for Subsistence, and any special pays) of the servicemember. Generally, once the amount of child support has been set by a court, only a court can change it. Changin the amount requires another court hearing or else the consent in writing of the other party, set out in a "consent order."
However, before a court has determined the amount of child support, you can get assistance directly from the military. Service members are required to provide adequate child support for their children. Each of the services (except the Air Force) has rules on how much the parent should pay. Contact the legal assistance attorney on base, or your spouse’s commanding officer, for help getting child support. Later, the court handling the divorce, or child support case, can make its own decision of how much support should be paid - based on the laws, rules and guidelines of that state.
Courts usually follow the state's child support guidelines to decide the child support amount. For military families, it’s important that the court understand the various elements of a service member’s pay. The court should also understand the potential for those amounts to change based on deployments, base transfers, and other factors.
Generally, states provide for the direct payment of child support by "garnishment," or wage assignment. If you have such an order, submit it promptly to the military pay center. For all armed forces except the Coast Guard, this is the Defense Finance and Accounting Service (DFAS). This order must meet specific requirements before DFAS will provide a "wage garnishment" (i.e. direct payments to the family). Merely submitting a copy of the divorce order may not work. The local JAG or military legal assistance attorney can explain how to do this so that the pay center will act on the order.
Can I get health care coverage after my divorce?
After a divorce, the non-military spouse has two possible options.
1. The first option is no-cost coverage under TRICARE. The parties must have been married for at least 20 years during the service member’s active service. This is sometimes called the 20/20/20 rule (20 years of marriage, 20 years of service, and 20 years of overlap). If the 20/20/20 rule has almost been reached, this could be a good reason to ask the court to hold off finalizing the divorce until the 20/20/20 rule is met.
If the former spouse has other insurance coverage, TRICARE will be the secondary payor. The private insurance must first pay the bill, and then TRICARE will be billed for any amount not yet covered.
Lifetime TRICARE coverage is dependent on the former spouse remaining unmarried. If the former spouse remarries, he/she will lose TRICARE coverage permanently.
2. A former non-military spouse who is not eligible for TRICARE may buy conversion health coverage. This is called the Continued Health Care Benefit Program (CHCBP).
If the military member leaves the the service, the former spouse who buys CHCBP is covered for 36 months after the date of divorce. A former spouse may also get continuing medical coverage through CHCBP for an indefinite period (not just 36 months) if she or he meets these conditions. The former spouse:
- Must be entitled to a share of the service member's pension or Survivor Benefit Plan coverage
- May not be remarried if below age 55
- Must pay quarterly advance premiums, and
- Must meet application deadlines
The scope of coverage is the same as that for federal employees. The cost is about $450 per month as of 2017.
Thrift Savings Plan (TSP)
Service members have the option to contribute to a Thrift Savings Plan during their active service. The TSP is a retirement savings plan, much like a 401(k) plan or an IRA. Many people overlook this asset when going through a divorce. This TSP can be divided between the parties. It can also be given to one party in exchange for some other asset. The service member’s TSP statement provides information about the current value of the TSP account.
Survivor Benefit Plan (SBP)
A service member can buy a death benefit, called the “Survivor Benefit Plan” (SBP), when he/she retires. The person named as the "beneficiary" of the Plan - usually a spouse or former spouse - will get ongoing payments after the service member dies. Without SBP coverage, the pension payments end when the service member dies. The court can require SBP coverage upon divorce.
When electing SBP coverage, the service member chooses a “base amount.” This base amount can be as high as 100% of the member's retired pay or any amount down to as low as $300. The Plan pays 55% of the selected "base amount" to the beneficiary. For those retiring from active duty the cost of SBP is 6.5% of the base amount; for Guard/Reserve retirees, it's about 10% of the base. This premium is deducted from the member's retired pay.
There are two important points about SBP coverage for the former spouse:
- Election. The service member can opt for former spouse coverage upon divorce by sending the proper form to the appropriateretired pay center within one year of the divorce. But a safer course for the former spouse is to request the court to 1) require SBP coverage, and 2) send a copy of the divorce order and the appropriate form to the retired pay center. This is called making a “deemed election.” The court must order “former spouse coverage,” not just name the party covered.
- Deadlines for Notification. The deadline for receipt of an election by the service member is one year from the divorce. The retired pay center must receive the required form within this one year period. The deadline for a "deemed election" by the former spouse is one year from the date of the order granting SBP coverage. When the divorce decree grants coverage, these deadlines are the same.
There may only be one adult beneficiary for SBP. So the benefit cannot be divided between, for example, a current spouse and a former spouse. The benefit is suspended if the former spouse remarries before age 55. But the coverage will be reinstated if that remarriage ends with death, divorce or annulment. If the service member does not specify a "base amount," then the pay center will deem the base amount to be the full retired pay.
Dealing with military pensions in a divorce is complicated. Get help from a lawyer who has experience with dividing military retired pay.
Some people believe that you can’t get a share of a military pension if you’ve been married for less than 10 years. This is not true. The divorce court can give the non-military spouse whatever share of a military pension that it thinks is fair.
The so-called “10-10 rule” refers to a rule that triggers garnishment of the pension for property division. Under this system, the retired pay center divides the monthly pension check, then sends the correct portion to each party. The "10-10 rule" means that you have been married for at least 10 years while the military spouse was on active duty (or doing “creditable service” in the Guard or Reserves). Where the "10-10 test" is not met but the court still awards division of the pension, the military spouse is responsible for making the monthly payments directly to the ex-spouse.
If you are close to meeting the “10-10 rule,” you might want to slow down the process or ask your lawyer about delaying the divorce hearing.
To get your pension-share check from the retired pay center (assuming that you meet the "10-10 rule"), you will need a court order that:
- States the names, addresses and Social Security numbers of the parties
- Specifies that DFAS will make the payments
- States the amount or percentage in one of four acceptable formats
- Is sent to the retired pay center with DD Form 2293, along with a copy of the divorce decree, and
- Complies with all other DFAS rules
Submit the paperwork to DFAS immediately after the divorce in order to catch any problems right away.
Some things to consider when dividing a military pension:
- Are the years of service more than the years of the marriage? Will the military spouse remain in service after the divorce? If so, what fraction will be used to provide a fair share of the pension to each party?
- Consider the “COLA” (cost of living adjustment). Over time, the COLA increase can be substantial. If the court order gives the ex-spouse a fixed dollar amount of the pension, there will be no COLA.
- There is a difference between “gross retired pay” and “disposable retired pay.” Understand the terms and be careful of what language you use. Dividing gross retired pay may mean a larger amount of the pension share.
- Some retirees qualify for disability compensation. This can reduce the amount of the military pension, also reducing the ex-spouse’s pension share. The court amay be able to avoid this result by including a "reimbursement" clause, requiring the retiree to pay back the former spouse for any loss of pension share. The best approach to this is for the parties to agree on such a clause.
When getting a divorce, service members and their spouses must become familiar with the legal issues that affect military divorces. A military divorce involves unique legal issues that are unlike those facing people outside oft he military. There is help available. Some private attorneys specialize in these issues. While the military legal assistance lawyers on military bases cannot represent you in a divorce, they can advise you about these issues.
To find help closest to you, follow the steps outlined here. Then search for "divorce."