Divorces involving a spouse who is a current or retired member of the U.S. Armed Forces present unique challenges. State law governs most aspects of the divorce process, such as determination of child custody and visitation, grounds for divorce, division of property and debt, and spousal and child support.
In a divorce involving a current or former service member who may be entitled to receive military retired pay, however, certain Federal laws authorize a state court to treat a service member’s military retired pay as marital property and direct how the state court may divide it between spouses. These Federal laws include the Uniformed Services Former Spouses Protection Act (USFSPA) and the National Defense Authorization Acts for fiscal years 2016 and 2017.
Under recent Federal law, significant changes have been made to how a state court may determine a spouse’s interest in a service member’s military retired pay. Factors that now affect how a court determines a former spouse’s interest in a current or retired service member’s military retired pay include:
Service members who are on active duty may also receive certain protections under the Servicemembers Civil Relief Act of 2003 (SCRA). Upon the request of the service member, this Federal law prohibits a state court from proceeding with a divorce case or other family-related matter for at least 90 days if the service member is unable to participate as a result of his or her military service. Additional time, or “stays,” may also be obtained by the service member in the discretion of the state court.
When dividing military retired pay, Federal law also permits a state court to order a current or retired service member to designate his or her former spouse as the beneficiary under the service member’s Survivor Benefit Plan (SBP).
The SBP is an important benefit that is similar to a life insurance policy or annuity. In the event a former spouse is designated as the beneficiary under the SBP and he or she does not remarry prior to attaining the age of 55, the former spouse will continue to receive a portion of the deceased service member’s military retired pay for the remainder of the former spouse’s life. This amount of money may be adjusted when cost of living adjustments are applied to military retired pay.
If a former spouse does not seek to be designated as the former spouse survivor beneficiary under the SBP, then the former spouse will cease receiving any portion of military retired pay following the death of the retired service member, and the loss of such income may have a detrimental impact on the former spouse.
Depending on how long a service member served during a marriage, a former spouse may be entitled to certain additional benefits. Under the “20/20/20 Rule,” the former spouse will be eligible for all military benefits and installation privileges, including medical, commissary, military exchanges (PX/BX), etc. after divorce if:
Commissary, military exchange (PX/BX), and other installation privileges are suspended while the former spouse is remarried, but reinstated upon the remarriage terminating due to death or dissolution.
The “20/20/15 Rule” allows former spouses to have one year of transitional medical benefits. A former spouse may qualify for one year of transitional medical benefits if:
Medical benefits are suspended, however, while the former spouse is covered by an employer-sponsored health care plan and such benefits will terminate upon the former spouse’s remarriage. If a former spouse does not meet the “20/20/20 Rule” or “20/20/15 Rule” requirements, then he or she will lose his or her entitlement to benefits upon divorce.
Finally, a former spouse will be entitled to receive his or her interest in the service member’s military retired pay by direct payment from the military if there is 10 years of overlap between creditable service and marriage.
In cases involving minor children, military regulations require service members (particularly single or divorced and dual military parents) to execute a Family Care Plan. A Family Care Plan will outline who will care for any dependent children on a short- or long-term basis during periods of time that a military member is unavailable due to military drills, annual training, mobilization, or deployment. Care of minor children may also be addressed in a court order addressing custody and visitation, or a written agreement between parents who are separated or divorced.
Because of the unique issues presented in divorce involving current and retired armed forces members and their spouses, it is prudent for such persons to consult an experienced divorce attorney. The attorneys at ShounBach have significant experience handling divorces involving current and retired members of the Armed Forces and can provide valuable guidance tailored to the specific facts and circumstances of your case.
The details of a military divorce will change based upon what state you reside in as well as the unique facts and circumstances of your marriage. If you have questions regarding separation or divorce involving a military service member, please talk to a Northern Virginia divorce lawyer from our team at ShounBach.