Sep 16 2014
Service members’ and veterans’ benefits are administered by either the Uniformed Services or the Department of Veterans Affairs (VA). Since there are no VA benefits for former spouses, all potential benefits for former spouses come from the Services. This summarizes the major programs affecting divorcing Service member couples.
For detailed or personalized information, you need to consult legal or functional experts within the Services. Look to the Uniformed Services Former Spouse Protection Act (USFSPA) for greater detail (http://www.dfas.mil/garnishment/usfspa/legal.html) into Service information
The USFSPA allows state courts to treat “disposable” Service retired pay as property of the marriage (definition of “disposable”: http://www.law.cornell.edu/uscode/text/10/1408). This means that disposable retired pay can be split between the divorcing couple. There are some misconceptions about the law and how it works.
The law allows disposable retired pay to be treated as property. It does not state it has to be split. Also, the law does not state the former spouse gets 50% of the retired pay automatically. State divorce courts will award whatever amount they feel is appropriate within their laws to a former spouse. Many courts use a formula to determine what portion of the retired pay a former spouse gets.
The 10/10 Rule. If the marriage and the member’s Service time overlap by at least 10 years, then the pay agencies (like DFAS for the military Services) can directly pay a spouse up to a maximum of 50% of the disposable retired pay amount—assuming the court awarded the former spouse 50% or more.
Note the nuance in the paragraph above. This is an administrative limitation on the amount of retired pay a pay agency can directly pay to a former spouse. The court can award more or less than 50%. If 50% or less, the former spouse can be paid directly by the pay agency. If more than 50% (yes, it can be more than 50%), then the Service member must figure out how to get any amount over 50% to the former spouse.
By law, a Service member’s Service disability compensation is not considered part of the divorce property eligible for award to a former spouse. Specifically, Service disability pay under the medical retirement law (10 USC Chapter 61) is not considered “disposable” retired pay for division as marriage property. However, VA disability compensation is not protected from the requirements of family or child support by a state divorce court as is commonly believed.
So again note the nuance of the two paragraphs above. The court doesn’t have to award, meaning specifically assign, disability compensation whether from Service retired pay or VA disability compensation to a former spouse. A court may order a general amount to be paid by the Service member to a former spouse or family. Where the money comes from is up to the Service member even if disability pay has to be tapped.
Other Service Benefits
20/20/20 Rule. For a former spouse to be entitled to Service benefits (health care, ID card, base benefits), the Service member must serve for 20 years and the couple has 20 years of marriage with 20 years of overlap. This is the rule of law used to determine a former spouse’s eligibility for the following Service benefits (10 USC, Sections 1072, 1078a, 1086a). There are a few exceptions to the 20/20/20 Rule but they are based on old rules from 1980s that probably won’t apply to current day cases. There are also some special rules for abused spouses.
Health care. The 20/20/20 rule must be met before a former spouse is eligible for Tricare health care. But there are two catches:
#1, the former spouse can’t remarry. Once remarried, the former spouse loses Tricare forever (one exception, you get Tricare if you remarry a retired military member).
#2, the former spouse can’t have an employer-sponsored health care plan or a purchased health care plan. You must choose between your employer/purchased plan or Tricare.
There are a few exceptions to the 20/20/20 rule above but they involve at least 15 years of overlap or limited Tricare eligibility (no more than 1 year) or eligibility for the Continued Health Care Benefit Program (CHCBP) which is like purchasing a plan through the health care marketplace. CHCBP is for unremarried former spouses and is limited to 36 months.
ID cards. Processing the application for an ID card will require the following documents:
- Certified copy of marriage certificate.
- Certified copy of final divorce decree.
- Notarized statement that you have not remarried.
- Notarized statement that you do not have medical coverage under an employer-sponsored health plan. Provide the name, address, and telephone number of your employer.
Spouses previously enrolled in DEERS can get service from any ID card office. To locate your nearest ID card office, go to: www.dmdc.osd.mil/rsl/owa/home.
Initial applications must be accomplished by the parent service.
If you have an ID card, you have base benefits; commissary, exchange, MWR, and other benefits that come with an ID card. Any questions can be addressed to the parent service or to the nearest Uniformed Services ID Card issuing office for advice.
Unlike the Tricare health care, if you get remarried and the remarriage ends because of death or divorce, a former spouse can get base benefits back by re-applying for an ID card.
The Survivor Benefit Plan (SBP)
The SBP is the only program that provides a monthly lifetime income to a beneficiary that is based on the Service member’s retired pay amount. A beneficiary gets 55% of the Service member’s base amount which is usually the amount of retired pay.
The 20/20/20 rule does not apply to the SBP. If a divorce decree states a former spouse is to get SBP, it happens, if timely notification is made to the pay agency by the Service member or the former spouse.
The former spouse provides an official copy of the court document to the Service pay agency and declares a “deemed election.” This means the former spouse makes a claim for the SBP based on legal grounds whether the Service member is involved or not.
The deemed election changes the beneficiary on the SBP to “former spouse.” It also allows “former spouse and child” coverage. The deemed election must be made to the pay agency within a year of the divorce date.
Remarriage does not cancel the coverage but it will be suspended until the remarriage ends in death or divorce and the SBP is reactivated. If the former spouse is receiving survivor payments because of the Service member’s death and the former spouse remarries, payments are suspended if remarried prior to age 55 and can start again if the remarriage ends. Remarriage by the former spouse at or after age 55 does not stop the payments.
The Service member is not allowed to have another beneficiary as long as the former spouse has the beneficiary status. If a former spouse dies as the SBP beneficiary while the Service member is still alive, the Service member loses the SBP as the policy is cancelled.
There are no benefits for former spouses under the Department of Veterans Affairs (VA). If you want to make sure there are no special circumstances in your situation, you can contact a local Veteran Service Office to determine eligibility for VA programs. Find your local Veteran Service Office at http://www.va.gov/statedva.htm.