A common question from service members and spouses facing a military divorce is which benefits get divided up, and how. Some benefits are subject to division in a divorce, and others are not. To understand what benefits you may be eligible for, and which are off limits, you first need to understand the categories of benefits available to military service members.
These benefits fall into two general “buckets:” those available to military retirees, and those available to military veterans. What’s the difference?
A military veteran is defined in federal law as “a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.” A military retiree has either completed at least 20 years of active service, or has been medically discharged due to a disability. All military retirees are veterans, in other words, but not all veterans are retirees.
Military retirees are eligible for pensions and other benefits through the Department of Defense (DOD). All veterans are eligible for certain benefits through the U.S. Department of Veterans’ Affairs, better known as the VA. These include health benefits, disability pay, pension, and burial benefits.
Marriage is a partnership, and a military marriage is a partnership in which both spouses typically sacrifice a great deal. By the time one spouse’s military career ends in retirement, at least one of two things has happened. Either the non-military spouse has supported the service member spouse through several years of military service, or the non-military spouse has helped the service member through a career-ending disability. It makes sense that, in divorce, that support would be acknowledged and rewarded. (Learn more about military pensions and the 10-Year Rule, which is often misunderstood.)
Depending on the length of the marriage and the overlap of the marriage with the service member’s active duty, the non-military spouse may be eligible for TRICARE coverage upon divorce. (However, this coverage terminates if the non-military ex-spouse later remarries).
VA benefits are a different animal from military retired benefits. Those financial benefits depend on the veteran’s qualifying military service. In other words, they simply have more to do with the veteran him- or herself than with a spouse. As a result, they are not divisible upon divorce. While a current spouse may receive health care benefits from CHAMPVA (Civilian Health and Medical Program of the VA), when the marriage ends, so do the benefits.
When we talk about VA benefits, what is most often at issue is VA disability compensation. Under state law, only marital assets are subject to division at divorce. Federal law is very clear that VA disability benefits are not a marital asset. That legal guidance is found in the Uniformed Services Former Spouses’ Protection Act (USFSPA), which exempts VA disability benefits from being considered marital property.
VA disability benefits are intended to compensate the veteran for his or her diminished earning capacity as a result of the disability. But while they are intended to help a disabled veteran, and while the benefits themselves are not property to be divided in divorce, that doesn’t mean they are not relevant to the divorce.
VA benefits can be considered a source of income to the veteran. That means that they can be considered in calculations for alimony or child support. A 1987 U.S. Supreme Court case, Rose v. Rose, a veteran refused to make a child support payment, arguing that his VA disability benefit belonged to him alone.
The Supreme Court disagreed. It observed that while there is specific compensation available for the children of disabled veterans, the amount is so small that it does not make sense to conclude that Congress included that compensation to be all that the children of disabled veterans are entitled to. The Court concluded that one of the purposes of VA disability benefits was to enable the veteran to support his or her family.
If you are a veteran, the good news is that your estranged spouse is not entitled to a percentage of your VA benefits in property division. But if you are required to pay alimony or child support, those benefits may be considered part of your income in the child support or alimony calculation.
If you are a service member or the spouse of a service member facing divorce, sorting out what happens to various benefits can be confusing. We invite you to contact our law office to schedule a consultation to discuss your options.