The D.C. area is home to many military service members, whether active duty, reserve or retired, and their families. As a result, many of the clients we represent are service members or spouses of service members. With a high percentage of marriages ending divorce, understanding the unique issues involved in a separation and/or divorce between a military service member and his or her spouse is imperative.
Many individuals, including parties to a divorce, attorneys and even judges, believe that the only unique issue in the context of a military divorce is division of military retired or retainer pay. Nothing could be further than the truth. While division of military retired pay is a complex and important issue, other issues that should be considered in the context of a military divorce include:
- Survivor Benefit Plan;
- Health Insurance, Commissary and Exchange privileges; and
- Family Care Plans.
Virginia divorce law provides that a party's interest in military retirement benefits can be classified as marital property, making it subject to equitable distribution or division between the parties. Further, a military member can be required to designate the other party as the beneficiary of retirement benefits. Retired pay stops when the retired military member dies. The Survivor Benefit Plan (SBP) helps make up for the loss of part of this income and pays eligible designated survivors, including former spouses, an inflation-adjusted monthly income. A retiring service member will be enrolled in the SBP Plan unless he or she declines to participate. Following retirement, premiums must be paid and are taken by reducing the gross retired pay before the retired pay is divided between the parties. Basic SBP coverage for a spouse or former spouse pays a benefit equal to 55 percent of the retired pay. However, the former spouse must elect "former spouse coverage" from the appropriate military finance center within one year of the date of the final divorce order or decree.
Eligible dependent children may also be SBP beneficiaries, either alone or in addition to spouse or former spouse coverage. If a child or children are designated as beneficiaries in addition to spouse or former spouse coverage, the child or children would receive benefits only if the spouse or former spouse dies or remarries before age 55.
In certain circumstances, former spouses can continue receiving commissary, exchange, and health care benefits after a divorce. In order to qualify for continued benefits a former spouse must show that the service member served at least 20 years of creditable service, that the marriage lasted at least 20 years and that the period of the marriage overlapped the period of service by at least 20 years. A former spouse who meets these requirements is known as a 20/20/20 former spouse and is entitled to full commissary, exchange and health care benefits. These benefits include TRICARE and inpatient and out-patient care at a military treatment facility. Former spouses who do not meet these requirements lose their commissary and exchange privileges once a divorce is final.
In cases where the service member served 20 years of creditable service, the marriage lasted 20 years, but the period of the marriage overlapped the period of service by only 15 years the former spouse is entitled to full military medical benefits for a transitional period of one year following the divorce. After this year of coverage, the spouse may purchase a Department of Defense (DoD) negotiated conversion health insurance policy. Full coverage also requires that the former spouse does not remarry nor enroll in an employer-sponsored health insurance plan. Former spouses who are neither 20/20/20 nor 20/20/15 former spouses are not entitled to any military health benefits after a divorce. However, they are eligible for the DoD Continued Health Care Benefit Program, a premium based temporary health care coverage program for 36 months of coverage until alternative coverage can be obtained, if they enroll within 60 days of losing full military health care benefits.
Military regulations require single parents and military-married-to-military couples with children (often referred to as dual military families) to have plans concerning the care of their dependent children in the event they are deployed. These are called Family Care Plans. Upon separation or divorce, a military member with a child or children becomes a single parent and therefore must have a family care plan. While there are some minor administrative differences in each branch of the military, family care plans have three basic requirements: designation of short- and long-term care providers and care provision details.
A short-term care provider is a non-military person who agrees, in writing, to accept care of the military member's children at any time, 24 hours per day, 7 days per week, in the event the military member is called to duty or deployed with no-notice. While this person cannot be another military member, the short-term care provider can be a military spouse. The short-term care provider must live in the local area where the military member(s) are stationed/located.
A long-term care provider is a non-military person, who agrees, in writing, to provide long-term care for a military member's children in the event the military member(s) are deployed for a significant period, or in the event they are selected for an unaccompanied overseas tour, or are assigned to a ship at sea. The long-term care provider does not have to live in the local area where the military member(s) are stationed/located, but the family care plan must contain provisions to transfer the children from the short-term care provider to the long-term care provider, in the event a no-notice deployment turns into a long-term deployment.
Both the designated short- and long-term care providers must sign the family care plan, indicating that they understand the responsibilities that are being entrusted to them.
In addition to designating short-term and long-term care providers, the family care plan includes detailed plans for the care and support of military children. Family care plans must include provisions for logistical movement of the family or caregiver, including but not limited to arrangements to relocate, if necessary, the caregiver or family to a new location, financial, medical and legal support necessary to ensure continuity of care and support of family members during the movement. Logistical arrangements must provide for financial support necessary to transport the family or caregiver to a designated location. Family care plans must also include arrangements for the financial well-being of family members covered by the family care plan during short- and long-term separations. Arrangements for financial care often include power(s) of attorney, allotments, or other appropriate means to ensure the self-sufficiency and financial security of family members.
Whether your case settles out of court or proceeds to trial, you and your attorney should be familiar with these issues so that each may be considered and addressed, as appropriate, in the context of your divorce.
If you are searching for an attorney to help you navigate a separation or divorce, please call us at (703) 988-7627.