Understanding Military Benefits in Divorce

Unpacking Military Divorce Benefits: A Guide for Spouses

Introduction

In the United States, military service members and their spouses are entitled to a range of benefits that are designed to support their physical, emotional, and financial well-being. However, when a military couple goes through a divorce, these benefits can become a source of contention and confusion. It is important for both parties to understand their rights and responsibilities when it comes to military divorce benefits.

What is a military divorce?

A military divorce is a legal process that ends a marriage between a current or former member of the military and their spouse. This type of divorce is governed by both state and federal laws, and it may have unique considerations due to the nature of military service.

Understanding the Uniformed Services Former Spouses’ Protection Act (USFSPA)

The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal law that was enacted in 1982 to address the division of military benefits in divorce cases.

One of the primary purposes of the USFSPA is to protect the rights of former spouses of military members by ensuring that they receive a fair and equitable portion of the military member’s benefits. This includes retirement pay, healthcare benefits, and survivor benefits.

It is important to note that the USFSPA does not automatically entitle former spouses to a portion of these benefits; it simply provides a framework for how they may be divided in a divorce.

Benefits available to former spouses of military members

There are several types of benefits that may be available to former spouses of military members in the event of a divorce. These benefits vary depending on the length of the marriage, the length of military service, and other factors.

Healthcare benefits

Former spouses of military members may be eligible to continue receiving healthcare benefits through the military’s Tricare program after a divorce. This is known as the Continued Health Care Benefit Program (CHCBP) and can provide coverage for up to 36 months after the divorce is finalized.

Military retirement benefits

The most significant benefit that may be available to former spouses in a military divorce is a portion of the military member’s retirement pay. The USFSPA allows state courts to divide military retirement pay as part of a divorce settlement.

It is important to note that this division is not automatic and must be included in the divorce settlement agreement. Additionally, the court must have jurisdiction over the military member in order to divide their retirement pay.

Survivor Benefit Plan (SBP)

The Survivor Benefit Plan (SBP) is a form of life insurance that is available to military members. It provides a monthly annuity to designated survivors in the event of the military member’s death. This annuity is a percentage of the military member’s retirement pay.

In a divorce, the court may order the military member to elect the former spouse as the designated survivor for the SBP, which would provide them with a source of income after the military member’s death.

How military retirement pay is divided in a divorce

Dividing military retirement pay in a divorce can be a complex process, as it is subject to both state and federal laws. The USFSPA provides a formula for determining the division of this pay, known as the “marital share.”

The marital share is calculated based on the length of the marriage during the military member’s service, also known as the “creditable service.” The formula is as follows:

Marital Share = 50% x (creditable service / total service) x retirement pay

For example, if a couple was married for 10 years during the military member’s 20 years of service, the marital share would be 25% (50% x 10/20) of the military member’s retirement pay.

It is important to note that this is just one method for calculating the division of military retirement pay, and the specific rules may vary by state.

Survivor Benefit Plan (SBP)

The Survivor Benefit Plan (SBP) is a critical aspect of military divorce, as it can provide financial security for former spouses in the event of the military member’s death. However, in order for a former spouse to receive SBP benefits, the following conditions must be met:

• The former spouse must be designated as the SBP beneficiary in the divorce settlement agreement.
• The military member must elect the former spouse as the designated survivor for the SBP.
• The election must be made within one year of the divorce becoming final.

If these conditions are not met, the former spouse will not receive SBP benefits. It is important for both parties to carefully consider the implications of the SBP and ensure that it is properly addressed in the divorce settlement.

Impact of state laws on military divorce benefits

State laws can play a significant role in the division of military benefits in a divorce. Each state has its own laws and regulations regarding property division, spousal support, and other issues that may impact the division of military benefits.

For example, some states may consider military retirement pay to be community property, while others may not. It is important for couples to understand the laws of the state in which they are filing for divorce in order to properly address military benefits in the settlement.

Disability benefits and divorce

Military members may also receive disability benefits from the Department of Veterans Affairs (VA) due to injuries or illnesses that were incurred during their service. These benefits are usually not subject to division in a divorce, as they are considered separate property.

However, if the military member waived a portion of their retirement pay in order to receive disability benefits, the waived portion may be considered divisible in the divorce.

Common misconceptions about military divorce benefits

There are a number of misconceptions surrounding military divorce benefits, which can lead to confusion and misunderstandings. Some common misconceptions include:

• Former spouses are automatically entitled to a portion of military benefits in a divorce.
• The USFSPA guarantees a former spouse’s entitlement to military benefits.
• Dividing military retirement pay is a simple and straightforward process.

It is important for individuals going through a military divorce to seek accurate information and guidance from a legal professional, rather than relying on these misconceptions.

Conclusion

Military divorce benefits can be complex and confusing, but it is essential for both parties to understand their rights and responsibilities when it comes to dividing these benefits. The USFSPA provides a framework for addressing military benefits in divorce, but state laws and individual circumstances may also play a role. By understanding the rules and regulations surrounding military divorce benefits, couples can ensure a fair and equitable division of benefits and avoid common misconceptions.