Military Divorce: Intel from the Front Lines
No matter how seasoned a soldier you may be and what you may have been through in service to our country or what you may have been through as a spouse of a service-member, nothing will have you prepared for a divorce. It’s your side vs. their side, your attorney (squad leader) vs. theirs. There will be combat, blood, tears, pain and PTSD. Ok, regardless of what you’ve heard or read many, if not most, divorces are not near that extreme and contentious. On average, only 5% of all divorces go through full litigation – many are resolved through mediation and, are relatively peaceful.
Regardless of which route a divorce takes, one area requires additional information and knowledge to handle properly whether you are the service-member or the spouse, military service. The matters to be addressed and how they are addressed are all important and, with the military, very exacting in how they are handled.
Custody and Visitation
Regardless of whether you are in the military or not, matters of custody and visitation are almost always difficult and ripe for contested litigation. I will not delve into the myriad of scenarios and issues that arise in these matters, just touch on the aspects that are particular to military members.
Custody and visitation can be difficult for military members as, generally, they are deployable and this can present an issue. This, however, does not mean that being in the military means you cannot get primary or, in rare instances, sole custody of your children or that you should not have the maximum amount of visitation with your children. The courts are instructed that service, in and of itself, is not to be counted against a parent. That doesn’t mean it won’t be brought up.
While the stability often offered by military service is beneficial, the instability of deployment or reassignment is not. That being said, custody is supposed to be determined on concurrent events and not prospective events but, military service is a little different as the likelihood of the prospective deployment or reassignment is often imminent or reasonably certain. Both parties, while the service-member remains in the same area as the non-military parent should look to share custody/visitation as much as they are able. However, regardless of what may be decided, any reassignment or Temporary Duty Travel (TDY) will mean the need for a new arrangement.
One important thing to note on this topic is that, under Virginia Code §20-124.8, when a military parent is deployed, her or she may move the court to delegate his or her visitation time to a member of the child's family (including a stepparent). This individual must have a relationship with the child that is both close and substantial.
Survivor Benefit Plan
Survivor Benefit Plans are plans in which, unless you have specifically opted out, military personnel are automatically enrolled. This plan provides benefits to the named beneficiary or beneficiaries in the event of the military personnel’s death. There is a monthly cost to the service-member for this benefit. The beneficiary or beneficiaries must be named prior to retirement from active duty.
If married at the time of retirement, you would most likely have elected your spouse to receive this benefit. If so, and you later divorce, changes concerning the SBP coverage can be made only if both parties to the divorce agree to it. Any elections other than the maximum protection for a spouse made after March 1, 1986, can take place only if the spouse concurs. It is important to note that a court order may require a person to elect (or to enter into an agreement to elect) ... to provide an annuity to a former spouse (or to both a former spouse and child).” A court is not required to make such an order, but they have the freedom to do so.
You cannot add an SBP election for your spouse after retirement except, if you divorce, you may elect SBP spouse coverage for the first spouse you may wed after retirement. However, you must elect the coverage before the first anniversary of your marriage.
If you are still active duty at the time of divorce negotiations, this is an important element to be discussed, including the payment for monthly cost to maintain the SBP coverage.
If you are a military member and have children, regardless of a divorce, they will continue to be covered during their minority by the military member’s Tricare insurance. For the non-military spouse, you will fall into one of three categories when the divorce is finalized:
20-20-20 Spouse. If your marriage has been for at least twenty years, the military member has served at least twenty years and twenty years of service and marriage overlap each other, you qualify as a 20-20-20 spouse. In this case, you are entitled to the full medical/health benefits (as well as commissary privileges) you already have, regardless of the divorce, for your lifetime.
20-20-25 Spouse. If your marriage has been for at least twenty years, the military member has served at least twenty years and at least fifteen but, less than twenty years of service and marriage overlap each other, you qualify as a 20-20-15 spouse. In this case, you are entitled to the full medical/health benefits (as well as commissary privileges) you already have for one year after the date of the divorce.
Other. If you do not meet the requirements of the 20-20-20 Rule or the 20-20-15 Rule, you are not entitled to any continuing benefits beyond divorce and all benefits will end at midnight of the day the Final Decree of Divorce is entered. However, many people, including even some in the family law field, are unaware of the Continued Health Care Benefit Program (CHCBP). Under this program, you can continue Tricare coverage for 18-36 months after your divorce. There is a cost for this continuing care but, it provides the same coverage, including prescriptions, as Tricare Select. If you qualify, you can purchase CHCBP within 60 days of the loss of Tricare eligibility as a military member’s spouse.
This is a benefit that is not only available to all service members but, is transferable to others and holds a value far greater than most understand.
The G.I. Bill is not a marital asset and cannot be divided or ordered given to a spouse by a court. However, the military member can transfer a portion or the entirety of their benefit if they wish. Here is where the value is misunderstood. It may not seem like anything but, if a spouse was given the entirety of the G.I. Bill it can, based on just State universities at in-state tuition and book costs, be worth $40,000 and, if a non-state school, even more. That is definitely not peanuts and any agreement to transfer this benefit should be weighed against items or expenses of equal value.
Thrift Savings Plan
TSP’s are treated differently than regular military retirement. TSP’s are divided in the same manner as other civilian accounts.
A TSP, for the purposes of division, will be determined based on the value at marriage and the value at date of separation. Anything earned prior to the marriage or after the date of separation is solely the TSP holders.
So, assuming a TSP is valued at $10,000.00 at date of marriage and valued at $25,000 at the date of separation, you would first subtract the $10,000 from the overall value to establish the marital share as $15,000.00. The spouse would be entitled to 50% of the marital share or $7,500.00.
Let’s clear up one bit of commonly held misinformation – there is no time minimum a spouse must be married to a military member to be entitled to a share of a military member’s military retirement. Even if you were only married for one year and, during that time the military member was in the service, the spouse is entitled to 50% of the marital share of the military member’s retirement, albeit a very small percentage.
The most simplistic calculation for retirement benefits are when the military member is already retired. The Defense Finance Accounting Service (DFAS) uses a formula based on length of marriage, time of military service and the overlapping years of both to determine the marital share and the spouse’s percentage of the overall retirement. Regardless of the length of marriage, the spouse’s entitlement is always 50% of the marital share. Let’s use a marriage of 10 years, with creditable service time of 20 years and, overlapping time of 9 years. The formula to determine marital share and spouse percentage is:
Number of months of credible service earned
During the marriage from the date of marriage
To the date of separation
A total of 108 months (9 years from above example) ____________________________________________________________
Total number of months of creditable service earned
At retirement of 240 months (full twenty-year service)
Credible marriage related service time 108 months divided by total credible service time 240 months = 45%. The marital share is 45% and former spouse’s half entitlement is 22.5%.
Active duty personnel’s retirement is treated a little differently. In prior years, the method for calculating the spouse’s interest was done exactly the same as when already retired. However, a few years ago, the methodology was changed and is now much more convoluted. Ultimately, the same formula as above will be used to ultimately determine things however, the path to get to the numbers to be used is very different.
The 2017 Nation Defense Authorization Act made a major change known as the Frozen Benefit Rule. This rule is a “rewrite” of the terms for military pension division found in the Uniformed Services Former Spouses’ Protection Act, or USFSPA. This revision requires that the military retired pay to be divided will be that attributable to the rank and years of service of the military member as of the date of divorce. This is so even though the member may rise higher in rank and years of service afterwards, resulting in a larger pension to be divided, which would then be discounted by using the “marital fraction” to apply pension division to only the benefit which was acquired during the marriage. The only adjustment will be cost-of-living adjustments that occur under 10 U.S.C. § 1401a (b) between the time of the court order and the time of retirement.
The way it works is to treat the date of divorce as if it was the military member’s date of retirement. The marital share and spouse’s share are determined at that time based on the years or creditable service at the date of divorce. The retirement amount to which the marital share will be applied is based on the High-3 at the time of divorce. The high-3 is the service-member’s average pay at the highest average basic pay earned during any 3 consecutive years of service. These three years are usually the most recent three years of service, but can be an earlier period, if the basic pay was higher during that period. The basic pay is the basic salary earned for the service-member’s position. It includes increases to salary for which retirement deductions are withheld, such as shift rates. It does not include payments for overtime, bonuses, etc. (If total service was less than 3 years, the average salary will be figured by averaging the basic pay during all periods of creditable Federal service).
While federal law does not mandate division of military retirement, it does give the State courts the authority to do so and, short of very unusual and rare circumstances, they always will. No military member likes to give up any of their retirement but, short of reaching an agreement with the spouse otherwise, it is virtually guaranteed that a Court will divide this asset and, any negotiations for divorce resolution will come with this expectation.
There is no entitlement for a spouse to a military member’s disability or Veteran’s Administration (VA) payments. These belong exclusively to the military member and, unlike regular military retirement, cannot be divided as marital property.
It is important to note that in 2004 the Concurrent Retirement and Disability Payments (CRDP) Act was instituted. Prior to CRDP, if a military member received a disability rating from the VA, in order to receive any payment from the VA, the military member would have to waive, dollar-for-dollar, the same amount as that received from the VA, from their military retirement payment. Under CRDP, this waiver is no longer necessary and the military member receives the full amount of any disability entitlement and the full amount of their military retirement. While this increases the amount, in total, received by the military member, all disability pay remains indivisible to a spouse.
( Note that while it is not divisible as an asset, disability pay is included and counted towards the military member’s monthly gross income when calculating support between the parties and for children.)
While divorces involving service-member’s are generally treated exactly the same as divorces involving no service-member, there are many additional factors to be aware of and determined. You should seek counsel when dealing in these matters as many may seem subtle in difference or nuance but, what you don’t know can have a drastic impact on the service-member and non service-member alike.