Family Law Issues Concerning Military Service Members and Their Spouses

Divorce matters can be complicated, regardless of the employment status of the parties.  But when one or both of the spouses is a member of the military, several issues come into play.  This article will address health benefits, retirement pay available to spouses of military service members, and child support.

 

Real American Military Family

 

  1.  Military Benefits Available to Former Spouses:

In most divorces, upon the entry of a judgment for dissolution of marriage (a final divorce decree), a spouse is no longer eligible to be covered under the other spouse’s medical benefits.  However, for military divorces, there are special rules.

 

“20/20/15 Spouses”: A military member’s former spouse qualifies for medical benefits for a full year, beginning from the date of the divorce so long as all of these are true:

  • The parties were married for 20 years or more (from the date of marriage to the date of entry of a divorce decree or annulment),
  • The service member performed 20 years or more of military service which entitles him/her to retirement pay; and
  • There is a 15 year or more overlap of the marriage and military service.

 

If the 20/20/15 former military spouse has employer-sponsored medical insurance, he or she is not eligible for the one-year transitional care.  If that employer-provided plan is optional, the former spouse can opt out of that plan and choose to participate in the one-year military benefit pan.

However, a 20/20/15 spouse is not eligible for the commissary (supermarkets) privileges, exchange privileges (tax-free shopping at  stores offering a variety of items at competitive prices, including department stores, gas stations, etc.) or Morale, Welfare, and Recreation (MWR) privileges (recreation activities such as arts and crafts facilities, bowling centers, golf courses, libraries, outdoor recreation, recreation centers, youth centers activities and recreation membership clubs).

 

“20/20/20 Spouses”: An unmarried former spouse of a military service member is eligible for medical benefits, commissary privileges, and exchange privileges, so long as all of these are true:

  • The parties were married for 20 years or more (from the date of marriage to the date of entry of a divorce decree or annulment),
  • The service member performed 20 years or more of military service which entitles him/her to retirement pay; and
  • There is a 20 year or more overlap of the marriage and military service.

 

If the 20/20/20 former military spouse has employer-sponsored medical insurance, he or she is not eligible for military medical care or TRICARE.  If that employer-provided plan is optional, the former spouse can opt out of that plan and choose to remain eligible under TRICARE.

 

For more information, visit: http://www.militaryfamily.org/info-resources/marriagedivorce/benefits.html

 

2.  Entitlement to Retirement Assets

The Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. 1408, focuses on issues facing military families when dealing with a divorce, specifically including a method for receiving retirement pay.

First, the USFSPA acknowledges that state courts have the right to allocate military service members’ retirement pay the same way as they would treat civilian retirement plans.  Thus, it can be partially awarded to a former spouse as marital property.  However, it is not automatic.  The former spouse must have been awarded part of the service members’ military retirement pay in the property division of the final divorce decree.  So while the USFSPA does not necessarily give a former military spouse part of the service member’s retired pay, it provides a method for the Department of Defense to enforce these orders.

The 10/10 Rule: In order a court order to be enforceable that grants a service member’s former spouse part of his or her retired pay, the former spouses must have been married for at least 10 years during which time the military service member performed at least 10 years of retirement-creditable military service.

In order to divide the service member’s retired pay, the decree must define it as either a fixed dollar amount, or as a percent of the disposable retired pay (meaning, the gross retirement money minus allowable deductions).  If the parties divorce while the service member is still on active duty, the former spouse’s military retirement pay award may be defined in a formula or hypothetical award.  If the former spouse’s retired pay award is clearly defined in the court order, a Qualified Domestic Relations Order is not necessary to divide retired pay.

For more information, visit: http://www.dfas.mil/garnishment/usfspa/legal.html

 

3.  Child Support

As in all divorce cases, military parents owe a financial responsibility to provide for their children.  It is important to have a custody judgment in place that works for both parents, and considers a military parent’s potential or impending deployment.  For child support purposes, the military requires its service members to pay sufficient support to their families, and the support guidelines vary depending on the branch of military service.  These guidelines seek to decrease financial hardship for the family until there is a finalized support order.

Also, the military can enforce an order garnishing the wages of a military service person.  This type of order must be served on the Defense Finance and Accounting Service, and it will direct the military to deduct child support directly from the member’s monthly paycheck.  Such an order will remain in effect until it there is a court order modifying or terminating said support.

For more information, visit: http://www.militaryfamily.org/info-resources/marriagedivorce/custody-child-support.html

If you are in need of assistance navigating a military divorce, please contact us.