A military divorce is uniquely complicated, in part because there are specific laws that determine what military benefits can be claimed by a nonmilitary ex-spouse of a service member. If you or your spouse is in the military and are considering divorce, here is what you should know about the nonmilitary spouse’s benefit rights following the divorce.
Summary of Unique Military Benefits
If the nonmilitary ex-spouse of a service member meets all the required conditions, he or she may be entitled to military benefits that include:
- Base privileges (including commissary, post/exchange, theater)
- Health care benefits
- Military retirement pay
- Survivor benefits
- Spousal support
There are different qualifications for each of these benefits.
A divorced nonmilitary spouse can keep their military ID and access to commissary, theater and other base facilities open to dependents only if three conditions are met:
1. The marriage lasted for at least 20 years
2. The military spouse spent at least 20 years performing service creditable for retired pay during 20 years of the marriage and
3. The nonmilitary spouse is not remarried. If a remarriage ends due to divorce or death, the base privileges are reinstated.
Nonmilitary spouse who do not qualify under the “20/20/20 rule” lose all base privileges when the divorce is final.
Health Care Benefits
Ex-spouses who qualify under the 20/20/20 rule retain full health care benefits. The benefits are suspended during any time the ex-spouse has employer-provided health care. They are terminated forever if the ex-spouse remarries.
If the military member served 20 years and the marriage lasted 20 years, and the member was on active duty during at least 15 years of the marriage (the 20/20/15 rule), the ex-spouse will be entitled to full military medical benefits for one year following the divorce. Then the ex-spouse can purchase health care under the Continued Health Care Benefit Program (CHCBP) for 36 months of coverage, so long as they enroll within 60 days of losing full military health care benefits.
Ex-spouses who do not qualify under the 20/20/20 or the 20/20/15 rule are eligible to purchase CHCBP for 36 months of coverage, so long as they enroll within 60 days of losing full military health care benefits. This health care access exists only so long as the spouse does not remarry or obtain employer-provided health care.
Coverage under CHCBP is available under the 10 United States Code §1078a for an unlimited time if an ex-spouse meets these criteria:
- The ex-spouse does not remarry before reaching age 55 (although those considering marriage after age 55 should seek an advisory opinion from the CHCBP Customer Service Office verifying that the remarriage will not compromise the “unlimited time” benefits).
- The ex-spouse was enrolled as a family member in an approved health care benefits program (Tricare or D.E.E.R.S) for 18 months before dissolution or annulment.
- The ex-spouse is receiving a share of the servicemember’s military retirement, or has a court order or written agreement for a share of the retirement, or is receiving an SBP annuity. (Spousal support will not qualify, and so should not be taken in lieu of either a share of military retirement or SBP annuity.)
- The servicemember is either retired or was “involuntarily separated” from the military.
Military Retirement Pay
A federal law, the Uniformed Services Former Spouses’ Protection Act (USFSPA), provides that the military will not pay any part of the member’s retirement to the spouse unless they were married 10 years or longer while the member was active duty military.
However, because California is a community property state, a court can find that part of the retirement earned during the marriage is community property, and can take it into account in equally dividing the community property between the divorcing spouses. As a practical matter, if the marriage did not last for 10 years while the member was active duty military, the member will get his pension, and the ex-spouse will generally get a community property asset or assets equal to the value of the amount of the pension the court decides is community property.
When a military retiree dies their retirement pay stops. To protect the surviving spouse, the military member can choose to give up a portion of their retirement pay in return for a Survivor Benefit Plan (SBP). The SBP is an annuity that provides monthly income to the spouse after the military retiree dies. The SBP coverage can be continued on behalf of a “former spouse” either by agreement, by court order, or by the voluntarily act of the retiree. The former spouse must elect “former spouse coverage” from a military finance center within one year of the date the divorce is final. Even if an SBP is ordered by the court in the divorce, the military will not pay it unless and until the member has retired with 20 years of service and then died.
If the retiree has more than one former spouse, only one can receive SBP coverage. If the former spouse is named to receive SBP coverage, a current spouse cannot receive it. To be named a former spouse beneficiary, a former spouse who was not married to the member on the date he became eligible to participate in a SBP must have been married to the member for at least one year. Benefits stop if a former spouse remarries before age 55, but can be resumed if the remarriage ends.
Spousal Support / Alimony
Spousal support (alimony) is not required by federal law, but if a California court chooses to award it, both child support and spousal support together cannot exceed 60% of a military member’s pay and allowances.
Call Minella Law Group for Military Divorce
The experienced divorce lawyers of Minella Law Group can help you with a military divorce, or any other type of divorce, dissolution, or annulment. We work to protect your rights to a fair result on issues of property division, child and spousal support, child custody issues, and, in the case of military divorce, military benefits. To set up an appointment, please call Minella Law Group today at (619) 289-7948. We look forward to helping you.