Military Divorce

Military Divorce 2018-02-06T17:48:48+00:00

From a legal standpoint, a military divorce is the same as a civilian divorce. The process is essentially the same however, if you are enlisted, or your spouse is, then there are a few considerations that may affect your divorce proceedings that are not a part of a civilian divorce.

  • If you or your spouse are deployed or stationed overseas, then the divorce proceedings may take longer than it usually would in a civilian divorce court process.
  • State residency requirements are more relaxed for active duty military personnel.
  • Creative time-sharing plans are needed to accommodate the schedule or location of the active duty member.
  • The civilian spouse may be entitled to continued benefits including a share of the military retirement pay/pension, thrift savings plan, survivor benefits plan, TRICARE, and eligible for select base privileges.

Military Retirement Pay or Pension Benefits

The Uniformed Services Former Spouse’s Protection Act (USFSPA) states that military divorces should follow the same rules and guidelines for child support and spousal support as a civilian divorce. This federal statute allows the states to either classify military retirement pay and/or pension as they would normally consider it as a part of the spouse’s marital assets or to classify it as property rather than as a source of income.

The Defense Financing and Account Services (DFAS) division provides direct retirement payments to qualifying civilian ex-spouses. For a civilian ex-spouse to be eligible for receiving direct retirement payments, the couple must have been married for a minimum of 10 years with at least 10 years of overlapping service.

For example, if a couple was married for 15 years and the military spouse was in the service for a total of 10 years, but only 8 of those years were during the marriage, then the civilian spouse would not be eligible to receive retirement payments. If, however, the couple was married for 15 years and the military spouse was in the service for a total of 10 years and all of those 10 years were during the marriage, then the civilian spouse would be eligible for retirement payments.

If you do not qualify for direct retirement payments from the DFAS, you could still be eligible to receive a portion of the retirement pay or pension if it is included in the divorce settlement. This amount would be separate from any child or spousal support awarded. There are also restrictions to how much can be awarded:

  • The maximum amount an ex-spouse can be awarded is 50% of the retirement pay.
  • If child support is also being awarded, then the maximum, combined amount cannot exceed 65% of the disposable retirement pay.

If you or your spouse is still active duty, then there are several methods in which to calculate the percentage of the retirement pay the civilian ex-spouse can be entitled to. The divorce settlement filed with the court will need to specify which method described below is being used to calculate the percentage. Eligibility also depends on a couple’s length of marriage. Typically, the length of the marriage will be calculated through points rather than in months, especially if the active duty spouse is in the Reserves.

  1. Net Present Value: This method of calculation is used if one of the spouses prefers to payout the amount owed upfront.
  2. Deferred Distribution: This method of calculation determines the amount due at the time of the divorce, but the payments do not begin until the active duty spouse retires from service.
  3. Reserve Jurisdiction: This is the most commonly used method of calculation in which the amount of the benefit is determined at the time of retirement, not the time of divorce.

Thrift Savings Plan and Survivor Benefit Plan

The distribution of a Thrift Savings Plan is treated much like the distribution of a civilian 401(k) during divorce proceedings.

The beneficiary status of a Survivor Benefit Plan is not automatically continued after divorce. A Survivor Benefit Plan is a mutually exclusive program, meaning to qualify as a beneficiary, you must be married to the service member. The beneficiary status of the Survivor Benefit Plan is addressed during the divorce proceedings.

Base Access and Privileges

Base access and privileges such as access to the commissary or the exchange are determined based on the 20/20/20 rule. The 20/20/20 rule means that all of the following conditions have been met:

  • You and your spouse were married for at least 20 years;
  • The military spouse was enlisted for at least 20 years;
  • The length of the marriage and the length of service must have overlapped by at least 20 years; and
  • You cannot have remarried. Getting remarried will forfeit your base access and privileges.

Tricare

In order to qualify for continuing TRICARE benefits, an ex-spouse must first meet all of the requirements of the 20/20/20 rule listed above. If an ex-spouse does not meet these requirements, TRICARE does offer transitional coverage based on the 20/20/15 rule. The requirements of the 20/20/15 rule are:

  • You and your spouse were married for at least 20 years;
  • The military spouse was enlisted for at least 20 years;
  • The length of the marriage and the length of service must have overlapped by at least 15 years; and
  • Remain unmarried for 12 months following the divorce.

You are entitled to this transitional coverage for up to 12 months after the divorce so long as you don’t get remarried in that timeframe. Getting remarried within 12 months of your divorce will forfeit your access to TRICARE under the 20/20/15 rule.