How Divorce Impacts Military Benefits

Divorce happens in military families just as it does in civilian families. While the divorce process itself is governed by state law, federal law dictates what happens to military benefits in divorce. In this blog post, we’ll talk about how divorce affects a spouse’s access to military benefits, and how the length of the marriage and the duration of service affect the calculation.

Military Pension Benefits in Divorce

Servicemembers with at least 20 years of military service receive a military pension. The monthly payment is calculated using the servicemember’s basic pay, years of service, and a retirement multiplier. Military retired pay is often one of the most significant assets in a military marriage. If a couple was married for any portion of one spouse’s military service, the portion of military retired pay earned during the marriage is an asset that is subject to division upon divorce.

Many people mistakenly believe that a spouse is not entitled to a portion of military retired pay in divorce unless the couple was married for 10 years. In reality, the rule is that if at least 10 years of marriage overlaps with at least 10 years of military service, a divorced spouse can receive payment of their share of military retired pay directly from DFAS.

Thrift Savings Plan (TSP) in Divorce

A TSP is something like the military equivalent of a 401(k) plan. Like a 401(k), it is a defined contribution plan, meaning that the service member makes a contribution of the same amount to the plan monthly. The military also makes matching contributions to the plan.

Also like a 401(k), the portion of a TSP earned during the marriage is a divisible asset in divorce. Just as with a 401(k), a former spouse can roll their portion of the plan into an IRA or other qualifying account after divorce.

Tricare and Military Medical Benefits in Divorce

Whether a divorcing military spouse is entitled to military benefits after a divorce depends on the duration of the marriage, the duration of military service, and the overlap between the two. A state divorce court cannot order a servicemember to grant a divorcing spouse military medical benefits if the spouse isn’t eligible under federal law.

If the couple was married for at least 20 years, the military spouse served for at least 20 years, and there is at least 20 years of overlap between the two (20/20/20), a divorced spouse is entitled to continue receiving Tricare. If there were 20 years of marriage and 20 years of service, but only 15 years of overlap (20/20/15), the divorced spouse may have one year of transitional Tricare benefits.

A former spouse who does not qualify for continuing or transitional Tricare may be eligible to purchase insurance through the Continued Health Care Benefit Program (CHCBP) for up to three years. This is the military equivalent of COBRA coverage, and like COBRA coverage, it is quite expensive. If other healthcare options are available, they may be more cost-effective.

Be aware that even if a divorced spouse is eligible for continuing or transitional Tricare, they become ineligible if they remarry.

VA Disability Payments

Veterans’ disability payments are not considered marital property and are not subject to division in a divorce. This is true even if the veteran became eligible for disability payments during the marriage.

Military Housing Benefits

There are different types of military housing benefits. If a military family lives in base housing, the non-servicemember spouse is entitled to remain in base housing until the divorce is final. At that time, the spouse is no longer eligible for base housing and must vacate within 30 days.

If a spouse is living separately from the servicemember in non-base housing while the divorce is pending, the servicemember will be required to pay the spouse a housing allowance unless a state court orders otherwise. This allowance terminates when the divorce is final. A servicemember living off-base continues to be eligible for basic housing allowance (BAH) after divorce, and that allowance is considered income for the purposes of calculating child support and spousal support.

Post 9/11 GI Bill Benefits in Divorce

The Post 9/11 GI Bill, which pays for tuition, monthly housing allowance, and books for veterans and eligible dependents. If the spouse of a servicemember is receiving benefits under the Post 9/11 GI Bill, those benefits can continue even after divorce if the servicemember agrees. However, a state court cannot force a servicemember to allow a divorcing spouse to continue to be a beneficiary of this program.

One thing to note is that some portions of the benefit count as income for calculating spousal support and child support, although payments for tuition and book stipend are not included in that calculation.

Military Dependent ID in Divorce

The spouse of a servicemember is no longer eligible for a military ID and the benefits that go with it after a divorce. However, dependent children of the servicemember continue to be eligible for a military ID, even if they no longer live with the servicemember.

Military divorce is complicated because of the interplay of state and federal law. If you are facing a military divorce or would like to know more about divorce and military benefits, it is important to speak with military divorce attorneys who understand how the laws intersect. We invite you to contact Brinkley Law Firm to schedule a consultation.