By Julie Provost
Divorce happens. When it does, there are legal actions to be taken, paperwork to be filed, and confusion over what happens with military benefits. If you are a military couple, the divorce process has another layer to it.
Here is what you need to know. . .
The divorce could take a while
Because of deployments, trainings that the service member can’t get out of, and how hectic military life can be, the divorce process might take a bit longer than it otherwise would. Due to the Service Members’ Civil Relief Act, a service member can request to delay any legal action.
Where you file matters
For civilian couples, filing for divorce where you live in is the norm. For military couples, things are a bit more complicated. By law, military couples can file in any state where at least one of the members has a legal residence. The couple should check on state laws and decide what would be the best state to get divorced in.
The Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. 1408 can provide legal rights to pension for an ex-spouse. According to Defense Finance and Accounting Service: “This act recognizes the right of state courts to distribute retired military pay to a spouse or former spouse (hereafter, the former spouse), and it provides a method of enforcing these orders through the Department of Defense.”
This act does not mean that a former spouse will automatically receive part of the pension. That would have be to awarded in a state court order.
For the ex-spouse to be able to receive direct retirement payments, the couple must have been married for ten years with an overlap of ten years of service. If the 10/10 requirement isn’t met, that doesn’t mean the pay award is invalid. It means that the payment can’t be enforced by direct payments under the USFSPA.
The maximum amount of receivable pension 50% of the military retirement pay. If the service member is already retired, the ex-spouse will start to receive the money 90 days after the order is filed. If they are still active duty, they will receive the money 90 days after the service member retires.
In the case that child support is being taken out of the pension, then the maximum combined amount that can be deducted is 65% of the disposable retirement pay.
VA disability compensation
The Uniformed Services Former Spouses’ Protection Act exempts the VA disability payment from division upon divorce. It’s important to note that the Supreme Court just ruled on this very issue in Howell v. Howell, clarifying that disability pay is not “divisible as community property.”
Child support regulations differ based on the branch of the military you are in. These are guidelines that can’t be enforced without a court order. It is assumed that the couple will come to a more permanent legal solution and will use these guidelines for a short amount of time.
Can you keep TRICARE?
In some cases, you can keep your TRICARE. In order for this to happen, you have to qualify for the 20/20/20 rule. This would mean that you were married for 20 years, that the service member served for at least 20 years, and that the marriage overlaps the time in service those 20 years. And you would be able to keep TRICARE until you remarried.
You can also qualify for transitional coverage under the 20/20/15 rule. This would mean to be married at least 20 years, in service for at least 20 years and an overlap of 15 years. Transitional coverage would be for 12 months after the divorce as long as you don’t remarry.
You can keep full base privileges if you qualify for the 20/20/20 rules mentioned above and as long as you do not remarry.
You will lose housing 30 days after the service member or family member moves out of housing. The military may pay for the move of the non-service member spouse if they are moving back home from an overseas location.
What if you are overseas?
If you are stationed overseas and can wait until the service member is back in the US, that would be a good idea. Sometimes a US court won’t recognize a divorce filed overseas.
You can get free military legal assistance through the installation legal assistance offices. Their services may include mediation, advice on legal issues, information on the Service Members’ Civil Relief Act, wills, and notary services. Hiring an experienced military divorce lawyer is also a good idea.
Julie Provost is an associate editor at Military One Click and a National Guard spouse. She can be reached at [email protected]