Divorce Issues within the Uniformed Services Pay and Benefit Programs

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

Retired pay

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.

Base benefits.

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.

VA benefits

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.

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SBP Terminates at Death of Covered Former Spouse

Aug 29 2014

retiredcoupleUpon divorce a retiree must notify DFAS to either suspend Survivor Benefit Plan (SBP) coverage or provide the former spouse SBP coverage. Former spouse election is made either by the ‘retiree election’ or by a court-ordered divorce decree.

A June 2013 legal review of Defense Finance Accounting Service (DFAS) practices determined that SBP is irrevocably terminated upon the death of a covered former spouse SBP beneficiary – meaning the military retiree does not possess the option for resuming SBP coverage for a current or a future spouse.

In addition, DFAS recently suspended SBP payments already being paid to a widow after it was determined that the current spouse coverage should never have been permitted following the death of the covered former spouse. The SBP annuity payments were later grandfathered and resumed in this particular case.

This “wrinkle” appears to stem from a statutory interpretation that a former spouse must be alive in order for the beneficiary to be changed, and in some cases, this would mean amending the divorce decree to consent to termination of their former spouse SBP coverage. In other words, the SBP insurance terminates upon the death of the former spouse and cannot be reassigned.

Prior to the June 2013 legal ruling , following the death of a former spouse SBP beneficiary, DFAS allowed retirees to resume SBP coverage for current spouses within 12 months; or if not married at the time of the former spouse’s death, within 12 months of remarriage.

MOAA does not agree with this reinterpretation and supports the long standing practice of allowing retirees to resume SBP coverage after the death of a covered former spouse, similar to the practice of allowing retirees to resume SBP coverage after a living former spouse provides consent to no longer being the SBP beneficiary.

The situation is very complicated and affected MOAA members are encouraged to contact MOAA’s Benefits and Financial Education Staff for more details.

Email BenInfo@moaa.org or call (800)234-6622 (MOAA).

 

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Yes, You Can Have 2 VA Loans…At the Same Time. The VA 2nd Tier VA Loan

Aug 25 2014

Published by under VA Benefits

HouseSoldBy Joe Gladden, Veteran Realty Serving America’s Military, and Susan Wallace, Senior Loan Officer, Access National Bank

If you weren’t aware of this, you certainly aren’t alone. In fact, many lenders experienced with VA loans, and Realtors, are not aware of this very powerful financial tool.

Clearly, purchasing a second home is not for everyone. Occupational required moves, financial goals and planning are very individual in nature. But when purchasing a second home is a consideration, with a first home financed with a VA loan, a 2nd Tier VA Loan should be considered. Generally speaking a 2nd Tier VA Loan is a good option when the first home was purchased in an area with a lower entitlement than the area where the second home would be purchased. The entitlement amount for the 2nd Tier VA Loan will be based on the current maximum entitlement in the county where the second home is to be purchased. Otherwise stated, generally, when the first VA financed home is in a lower cost area than where the second home is located, the 2nd Tier Loan is more likely to be an excellent option.

Confused? Consider this example with our fictitious military family:

Colonel Smith and his wife purchased a home with a VA loan during an early career tour in Florida for $200,000. After transferring, they kept the home and VA loan for 20 years hoping to retire in the home, renting it out much of the time. Since there is only a modest balance on this loan that will be paid off in a few years, they would like to keep the home and financing in place.

Colonel Smith recently received orders to the Pentagon for his final tour and expects to work in the DC area in defense contracting after retirement from the Air Force for at least five years. They have two children in college and have used most of their cash reserves for tuition and expenses. They both have excellent incomes and credit, and have found the perfect home in Fairfax County for $700,000. They initially assumed that since their VA loan was tied up in the Florida home, they would have to get a conventional mortgage by putting 10% ($70,000) down, which would be a stretch.

On a whim the Smith’s Googled “VA Loans” and came across an article about a little known VA Loan option called the 2nd Tier VA Loan. Upon further research, here’s what he discovered:

He could in fact have two VA loans at the same time. Using what is called 2nd Tier or Bonus entitlement, Col Smith found that in his situation he had $492,500 available at 100% financing for a 2nd tier VA loan. With the purchase price at $700,000 his loan officer explained that he would need a down payment, but it was only $51,875 vs $70,000 for a conventional loan and since private mortgage insurance (PMI) isn’t required with VA loans, their monthly payment was over $300 less with a VA loan, compared to a conventional loan.

Conventional Loan

Purchase Price 700,000
Down Payment 70,000 (10%)
Loan Amount 630,000
Interest Rate 4.375%
Principal and Interest 3145.50
Mortgage Insurance (90% loan to value) 362.25
Total Payment 3507.75

VA Loan

Purchase Price 700,000
Down Payment 51,875 (7.41%) ($700,000 – $492,500) x .25
Loan Amount 648,125
Interest Rate 4.0% (VA rates are typically .25% to .375% lower than conventional)
Principal and Interest 3094.25
Mortgage Insurance (90% loan to value) none – VA loans to not charge mortgage insurance
Total Payment 3094.25

By financing with a 2nd tier VA loan, the Smiths enjoyed both a significant advantage in monthly cash flow and cash reserve. Like their first VA loan, the 2nd Tier VA Loan is assumable, and the funding fee may be rolled into the loan or, is waved entirely with any documented VA disability.

The background math for determining entitlements was not presented in this article. For interested parties, it can be viewed by going to the following link: http://www.moresam.net/Forum/aft/1062

Note: All applications for VA loan require a declaration by the applicant that they intend to use the home as their primary residence. Also, applicants must meet all lender underwriting credit, income and debt ration requirements.

We hope this helpful, and as always, sincerely thank you for your service. We are always happy to answer questions regarding our articles.

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Your VA Loan Benefit: A Powerful and Flexible Financial Tool

Aug 04 2014

Published by under VA Benefits

housekeysBy Joe Gladden, Veteran Realty Serving America’s Military and
Susan Wallace, Senior Loan Officer, Access National Bank

Ten years ago, a VA loan made little sense for eligible VA loan purchasers in many of the country’s higher cost areas. Why? As home prices escalated in the hundreds of thousands, the maximum VA loan amounts with “zero down payment” were capped at $144,000. This meant that in most areas, a VA loan came with a very substantial down payment requirement. Concurrently the mortgage industry had responded by offering many conventional loans with two trusts. These products allowed most purchasers to buy a home with little to zero down, and avoid the private mortgage insurance (PMI), which dramatically reduced monthly payments.

Again…times have changed! Following the housing market collapse in the mid-2000’s, the conventional two trust loans fell out of favor and now most conventional loans require between 10-20% down. And, Congress has raised the maximum zero down loan limits for VA loans. These limits vary by county nationally. As an example in the Northern Virginia/DC region, a VA eligible home purchaser can borrow up to $692,500 with no money down.

But there are a number of other highly valuable features of the VA loan which make it the best home financing product on the market today. It is a highly flexible financial tool for VA eligible borrowers and should be considered as a key element in overall financial planning. Below is a summary of the primary features of a VA Loan:

  • Zero down financing – But, even if the contract sales price exceeds the maximum VA zero down loan limit for a specific county, the veteran does not have to make up the full difference.   And, in many cases, the amount of down payment required is substantially less than a conventional loans 10-20% down payment requirement.
    • Example:   $692,500 max zero down county limit; $800,000 contract sales price
      • With VA, buyer puts $26,875 down ($800,000 – $692,500) x .25
      • In comparison, with a 10% down conventional loan, buyer puts $80,000 down and would likely incur a substantial PMI (non-tax deductible) increase in the monthly payment.

Link to limits nationally by county (PDF).

  • A veteran can have more than one VA Loan at the same time – Really!
    • Known as a “2nd Tier VA Loan,” this little known benefit will be addressed in detail in a follow on article.
  • A VA loan is assumable. There are no assumable conventional loan products.   Those of us “mature enough” to remember the early ‘80’s know that interest rates can easily go double digit. So, when selling a home in an environment of increasing and / or high interest rates, “assuming” your VA funded loan at a lower interest rate looks far more affordable / attractive to purchasers whose alternative is to finance a home with conventional financing.
  • The funding fee for a veteran with any rated VA disability is waived for any / all VA loans, to include new loans, refinances, or 2nd Tier VA Loans which can save the veteran thousands of dollars.
    • Ex: This can save approximately $21,000 with a 3% funding fee on a $700,000 home.
    • If a funding fee is applied to a loan, the borrower generally has the option to roll that amount into the loan if desired.
  • VA Loans can be used for new construction and / or custom home builds.
  • Statutory requirements safeguard veterans for all contracts whereby the veteran chooses a VA loan, regardless of contract language. These safeguards include required:
    • Appraisal contingency
    • Finance contingency
    • Termite inspection / remediation
  • Obtaining a Certificate of Eligibility (COE) is now easier than in the past. Most lenders can access / confirm the COE on line.
  • VA appraisers may note obvious substantive defects in a home during their onsite review and can require seller correction before loan can be funded.

Note: Though unusual, sellers (including builders) can decline to sell to a buyer using VA financing. Buyers of course must meet lender credit standards and required income to debt ratios for loan approval.

The unique features of a VA Loan can be a powerful tool in your financial planning. Combined with today’s historically low interest rates, they can improve cash flow and give the VA eligible borrower the flexibility to redirect funds to retirement accounts, college bills, or in other areas that may benefit their financial planning.

We hope you find this first in a series on your VA Loan benefit helpful. Our next article will address the specifics of the 2nd Tier VA Loan.

Thank you for your service!

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Medicare Advantage Plans

Aug 04 2014

As a Medicare/Tricare for Life (TFL) enrollee, what happens if you are notified your doctors no longer accept Medicare coverage?

You can ask family or friends where they go. You can do a www.Medicare.gov search for other Medicare providers in your area. You can start calling doctors in your neighborhood. Or your doctor may offer the option of enrolling in a Medicare Advantage plan.

Medicare Advantage plans are Medicare. The Advantage plans are also known as Medicare Part C. With an Advantage plan, the government is not your insurer as in original Medicare. A health insurance company becomes your Medicare insurer.

Medicare approves and contracts with insurance companies to offer Medicare Advantage plans. The Advantage plan becomes your Parts A and B Medicare coverage. Per Medicare, the Advantage plans must be as good as, if not better than, the original Medicare Parts A and B. Only hospice is not covered by the Advantage plans but original Medicare continues to cover this for Advantage plan members.

Medicare Advantage plans work with Tricare for Life benefits as your Medicare Parts A and B. However, coordination between TFL and an Advantage plan may not be as smooth so talk with TFL at 1-866-773-0404.

The premium amount of the Advantage plans can vary but many use your Part B premium amount as their monthly premium cost. Your Part B premium will pay the insurance company rather than Medicare. Some plans’ premiums can cost more than the Part B premium however for the extra cost they usually provide extra benefits. Advantage plans can provide extra insurance in the form of dental, vision, hearing, or health and wellness coverage. Your Advantage plan may have other costs beyond the premium so stay alert when shopping.

You must comparison shop to purchase an Advantage plan. Advantage plan availability varies by locale. The Advantage plan web site (www.medicare.gov/find-a-plan) allows you to customize the features and cost. You may find some added features worth the extra cost. Medicare supplement insurance (Medigap-Plans A through N at www.medicare.gov/supplement-other-insurance) cannot be used with an Advantage plan—shouldn’t be an issue for TFL users.

Beware, many plans provide automatic drug coverage. As TFL members, you probably won’t want drug coverage. Your Tricare pharmacy benefits are better and because extra drug coverage has to pay first, you may find yourself filing manual claims to Express Scripts to exercise your Tricare drug coverage.

This only scratches the surface. Note the timelines with getting in and out of Medicare and Advantage plans. Download the Medicare and You 2014 handbook for details or call 1-800-633-4227.

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