Whether you are a member of the armed forces yourself or are married to a service member, life is a bit more unstable for you than for civilians. Service members can be deployed to many different locations throughout their military careers, and spouses and families must either uproot themselves periodically or spend extended periods of time without the service member at home. This is clearly a sacrifice for all involved, but the pay-off comes in the form of a long, meaningful, satisfying career protecting our country and the acquisition of the many benefits available to military service members and their families. The main benefits include military retirement pay, Tricare medical coverage, base privileges, and access to the military exchange and commissary.
But what happens to all of these privileges when a couple divorces? Divorce is always difficult, whether you are a civilian or a service member in the United States Armed Forces. But a military divorce has specific rules that may add to your confusion over what you are entitled to. Whether you are the servicemember or the soon-to-be ex-spouse, it is important to have a handle on the rules that might affect you during – and long after – the process of getting divorced.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) was enacted by congress in 1982. It was enacted in response to a Supreme Court ruling in 1981, essentially stating that Federal law did not give the courts the authority to award any share of a service member’s retirement to the ex-spouse in a divorce related property-division. In that ruling, however, Justice Blackmun wrote for the majority and stated that they invited Congress to change the Federal laws so that ex-spouses could receive their fair portion of such funds. Congress responded by enacting the USFSPA the following year.
The Essential Elements of the USFSPA
The USFSPA has a bright line test in a rule that has come to be known as the 20/20/20 Rule. This rule essentially states that a civilian ex-spouse of a service member can continue to receive military spousal benefits if:
- The parties were married for at least 20 years;
- The service member was an active member of the armed forces for at least 20 years; and
- The marriage must have overlapped the service member’s active military time by at least 20 years.
Obviously, military pensions are valuable assets, especially when you consider the fact that some people can retire by the age of 39 or 40 – which means that they will be getting their military pension pay for many years to come. The USFSPA categorized such pensions as “property” as opposed to “income” for the purposes of divorce. So now, each state court must treat the disposable military retirement pay as property and divide it according to the state’s laws on property division.
It is important to note that when the final divorce decree is issued, there must be a mention of the pension in order for a former spouse to continue to receive this benefit. If there is no mention of how the pension is to be distributed, this may well be viewed by the court as a “waiver” by the former spouse to any portion thereof. Make sure you do not inadvertently waive this valuable asset.
Alimony and Child Support
There are laws in place that provide for the enforcement of alimony and child support when it comes to military personnel. It reflects badly on the U.S. Military when their members don’t pay their familial obligations such as child support and alimony, so laws have been enacted to ensure that these obligations are met. The USFSPA allows for such enforcement of obligations in conjunction with 42 U.S.C. 659.
The USFSPA also made direct payments possible from the branch of service the member was in, directly to the former spouse. However, the settlement must be compliant with the USFSPA and can be for up to 50% of the service member’s disposable retirement pay.
The USFSPA allows qualifying former spouses of military personnel to continue to get military health coverage. And as healthcare costs skyrocket, this benefit becomes more and more valuable.
Survivor Benefit Plan
The Survivor Benefit Plan is a plan that a service member can purchase, and the USFSPA allows the member to voluntarily designate their former spouse as the beneficiary. The cost of the plan comes out of the service member’s military pension, but it ensures that the beneficiary will continue to receive a portion of the member’s military pension after the death of the member. Congress further modified the rule to allow a state court to order a service member to buy the plan and make the former spouse the beneficiary.
Commissary and Exchange Privileges
Commissary and exchange privileges are important to many military families, and those privileges are allowed to continue for former spouses who qualify under the USFSPA. These privileges can continue indefinitely or until the former spouse remarries.
Multiple Ex Spouses
In the event that the military service member has more than one ex-spouse when retirement comes along, some additional rules apply:
- The direct payments from the military to all former spouses combined cannot exceed 65% of the retirees disposable retirement pay. But please note that this amount does not necessarily include any sums that the court ordered one or more of the ex-spouses to receive.
- The secretary of the branch of service that the member is in shall handle direct payments to former spouses on a first-come, first served basis – up to the maximums discussed above.
Get Help for Your Child Custody Case
The attorneys at Batson Nolan PLC, know both Tennessee divorce law and military divorce law inside and out. Let their experience go to work for you as you attempt to navigate the sometimes muddy waters of a military divorce. These experienced attorneys know how to help you get the best results possible in your specific case. To get a free, confidential consultation with an attorney at either our Clarksville or Springfield offices, please call us or inquire online today.