In a Military Divorce, What is the Spouse Entitled to?

When civilians get divorced, state law governs how they should divide their assets. Being in the military or the spouse of a service member can change several aspects of the divorce process. Certain military benefits are subject to federal law. A lack of clarity about what happens to a military pension or other military benefits can add unnecessary pressure to a divorce proceeding. Non-military spouses may be entitled to a portion of a service member’s retirement benefits, but the rules for eligibility can be complicated and confusing. At Melone Hatley, P.C., our family law attorneys have experience handling military divorces. Learn about what benefits you might receive in your military divorce and how we can advise you to make the process as painless as possible.

How Are Military Divorces Different Than Civilian Divorces?

The divorce process is mostly the same in civilian and military divorces, with a few important exceptions. As with all divorces, state courts have jurisdiction over family law matters like child custody, child support, spousal support or alimony, and the division of marital property. State law defines “marital property” and establishes procedures for dividing property between spouses.

For military members and their spouses, a federal law known as the​​ Uniformed Services Former Spouses’ Protection Act (USFSPA) governs the division of disposable retired pay. The USFSPA allows courts to treat military retirement pay like an asset, similar to many civilian retirement accounts. It addresses how to divide the portion of a military pension that meets the state’s definition of marital property. The amount of the pension that a court may award to a non-military spouse depends on several factors, including the length of the marriage, the service member’s rank, and their years of service in the military.

The USFSPA only addresses military retirement benefits. Other benefits that service members or their family members may receive, such as VA disability benefits, are not considered assets in divorce cases. State courts may, however, treat some of them as income when calculating child support or alimony.

Another federal law, the Servicemembers Civil Relief Act (SCRA), can impact divorce proceedings when a military spouse is deployed or otherwise unavailable. A military service member might be unable to respond to a divorce petition or court order while deployed. The SCRA prevents state courts from holding service members in contempt or entering a default judgment against them when their military service prevents them from participating in a divorce proceeding or other legal matter.

What is the 10/10 Rule in Military Divorces?

Once a judge has signed a divorce decree that divides military retirement pay, the military service member’s former spouse will be entitled to a portion of the payments the service member receives from the Department of Defense (DOD). The 10/10 Rule determines whether the DOD’s Defense Finance and Accounting Service (DFAS) will send payments directly to the former spouse or if the service member must send payments themselves.

The DFAS will send payments directly to the former spouse if the service member and the former spouse meet the following two criteria:

• At least 10 years of marriage
• At least 10 years of active duty military service overlapping the marriage

Suppose that a couple that was married for 20 years, from 1998 to 2018. One of the spouses had 20 years of service in the military, from 1993 to 2013. They satisfy the 10/10 Rule because the military spouse served more than 10 years during the marriage.

Now suppose that another couple was also married from 1998 to 2018. The military spouse served for 20 years, from 1985 to 2005. This couple does not satisfy the 10/10 Rule because only seven years of military service overlapped with the marriage. The non-military spouse may still be entitled to a portion of their former spouse’s military retirement pay, but the DFAS will not make direct payments.

What is the 20/20/20 Rule?

Former spouses of military service members may continue to receive some of the benefits they received during the marriage if they satisfy the 20/20/20 Rule:

• 20 years of marriage
• 20 years of military service
• 20 years of overlap between the two

If a couple satisfies all three parts of the 20/20/20 Rule, the former spouse will likely be able to keep their military ID card and receive certain other benefits. This might include medical benefits through TRICARE and the use of the commissaries. The former spouse can continue receiving these benefits as long as they are un-remarried.

A non-military spouse can get a temporary continuation of their benefits, including a military ID card, if they meet the 20/20/15 Rule. The first two parts of this rule are the same as the 20/20/20 Rule, but it only requires 15 years of overlap between marriage and military service.

Does a State Have Jurisdiction to Split a Military Pension?

The USFSPA leaves most family law issues in a divorce to state courts to decide based on state law. This can be a complicated and confusing issue for military families that move between states often. A state court’s authority to divide a military pension depends on whether it has jurisdiction over the military spouse. This may happen in three situations:

• The military spouse is a legal resident of that state.
• They reside in that state for any reason other than military deployment or assignment.
• They consent to that court ruling on how to divide their military pension.

If none of these apply, the state court lacks jurisdiction over the service member and cannot divide the pension. 

What is the Continued Health Care Benefit Program?

Former spouses who do not meet the 20/20/20 Rule’s eligibility requirements may be able to continue to receive benefits temporarily, in exchange for premium payments, through the Continued Health Care Benefit Program (CHCBP). This program functions as a bridge between military benefits and civilian healthcare.

CHCBP benefits offer the same coverage for medical care and prescription medications as TRICARE Select. The program is available for 18 to 36 months after a former spouse is no longer eligible for TRICARE benefits.

Does Remarrying Impact Your Right to Receive Military Pension Payouts?

Federal law treats military retirement benefits as an asset subject to division in a divorce. A service member’s former spouse, therefore, owns a portion of the service member’s military pension after the divorce. Remarrying does not affect this in any way. The former spouse will be entitled to payments from the pension, regardless of marital status, once the service member retires.

Remarriage can, however, affect certain other rights. If someone receiving alimony or spousal support remarries, their former spouse’s payment obligation ends as of the date of the new marriage. Former spouses who are eligible for various military benefits under the 20/20/20 Rule will lose some of those benefits if they remarry.

Why Hire a Military Divorce Attorney?

Divorce can be messy, complicated, and a difficult process under any circumstances. Federal laws and regulations add even more complexity to military divorces. Dividing a military pension requires navigating a rather massive bureaucracy. Combined with the intense emotions that often come with divorce, it can seem like an impossible task. Our divorce lawyers have experience handling military pensions and related issues and are here to help. We can take on the difficult work of a divorce proceeding.

The following are only a few examples of what a family law attorney with military divorce experience can do to help during such a difficult time:

• Explain the divorce process and answer questions
• Address concerns and dispel common myths and misconceptions about military divorce 
• Negotiate with the other spouse’s attorney, thus minimizing conflict between the spouses
• Identify unique issues presented by the military service of one or both spouses
• Create a strategy for the divorce that takes issues like deployment and the SCRA into account
• Address issues affecting child support and child custody that may arise due to military service
• Determine an equitable division of a military pension and other assets
• Offer advice regarding the availability of medical benefits after the divorce

Are You Doing Everything You Can to Receive a Fair Divorce?

In a military divorce, federal law governs the division of certain military retirement benefits. The rules for dividing military benefits between spouses can differ from those in state law. Military families, which can include active duty service members, retirees, and non-military spouses, need legal assistance from an advocate familiar with military procedures and state family laws. Our military divorce lawyers at Melone Hatley are available to assist clients throughout Virginia and Charlotte, North Carolina. We offer free eBooks and advice videos to help you understand your rights. You can schedule an appointment by calling us at 800-479-8124 or filling out our online contact form.