Divorce of any kind is difficult to confront. But when it comes to military divorce, you and your spouse will find yourselves in a unique situation. Much of the divorce process remains the same whether you are a service member or civilian. However, it's no secret that military spouses qualify for a range of benefits and privileges that civilians do not.
Countless factors go into determining whether you or your spouse will continue to receive military benefits after divorce. So what happens to these benefits when it comes time for a military divorce? And how do you protect yourself and your family during this turbulent time?
Is Military Divorce Different than Civilian Divorce?
When it comes to the legal proceedings surrounding a military divorce, the process is very similar to a civilian divorce. You and your spouse will prepare legal documents and divide property just like any other couple. Of course, this process is not easy for anyone. But since military and civilian divorces are practically identical, there are plenty of resources available to help you navigate this process.
Legal protections do exist for active duty service members served with divorce papers. The Servicemembers Civil Relief Act (SCRA) delays court proceedings that involve divorce or child custody from going forward until the service member can be present. This is an important safeguard for those deployed overseas or otherwise occupied with military duty. This delay can be extremely frustrating for a non-military spouse who wants to expedite the divorce process. But these protections are essential to protect the rights of military members.
What Resources are Available for Military Divorce?
As a military member or spouse of a military member, you do have access to specialized legal services. Active duty military members and their families have access to free legal assistance through their base or installation's legal offices. While the services available to you will vary depending on your branch and specific situation, they can be extremely helpful. You can expect assistance like mediation, legal representation (including separate representation for your spouse), and legal advice.
Some people have heard that only one member of a marriage may seek assistance from their base or installation's legal office. While there are some limitations, mostly related to conflict of interest, this is not entirely true. The best course of action is speaking directly with your respective office. The officers there can inform you of what they can or cannot do for you.
Of course, the stresses of military divorce don't stop when you leave your lawyer's office. Counseling services are available for military members and their families whenever necessary. Not only will these services help keep you alert and focused while on-duty, but they can also help ease the emotional hardship that can accompany divorce. If at any time you feel that you would benefit from these services, don't hesitate to reach out to your counseling office.
Military Benefits for the Ex-Spouse
One of the biggest differences between military divorce and civilian divorce is how the courts handle spousal benefits. When you and your partner file for separation, no changes will occur to your benefits. But after divorce is finalized, then some important changes will go into effect.
This means that during the potentially long and stressful military divorce process, you or your spouse will still continue to receive health insurance, base privileges, and other forms of support. While there is no guarantee that your benefits will continue after divorce is finalized, this transitional period can help lessen the stresses of the process as a whole. This can also provide an opportunity for you to seek off-base housing, health insurance, or other necessary resources.
Some benefits follow the same rules regardless of your relationship. Others, though, are determined by the court with the rest of your military divorce proceedings. If there are any benefits that you are particularly concerned about, we recommend speaking directly with your respective legal counsel. However, the information below will apply to most military divorce cases.
Retirement and pensions
As a military spouse, you share in benefits like retirement pay and pensions. Many people believe that, after military divorce, the non-service member ex-spouse has no rights to this money. However, in many cases, this is not true. For someone to qualify for a portion of their former spouse's military retirement or pension, they must have been married for at least 10 years overlapping with active duty service. If you meet these criteria, the military will make direct payments to the non-service member. These payments begin after the active duty service member becomes entitled to their own retirement payments.
If your marriage doesn't meet these requirements, then you or your ex-spouse might qualify for a portion of retirement pay. The Uniformed Services Former Spouse Protection Act (USFSPA) dictates that retirement pay serves as disposable income during the division of property. In this case, state law will determine how this income is divided during the divorce proceedings. Courts typically treat these payments the same way as child support, alimony, and other property division.
Survivor Benefit Plan
A Survivor Benefit Plan protects a spouse in the event of an active duty military member's death. This plan is an insurance policy that includes a premium. But after military divorce, the non-service member former spouse does not automatically remain as the beneficiary.
Former spouse coverage is an option for Survivor Benefit Plan, and in some cases, divorcing couples opt for this to protect the parent of their children in the case of a tragedy. But whether or not the non-military partner can be removed as the Survivor Benefit Plan beneficiary will depend on the court's decision. If the former spouse ultimately leaves the plan, then the government will refund the premiums.
If you are the military member in the relationship, there are several important factors to consider regarding your Survivor Benefit Plan. When you opt to keep your former spouse as your beneficiary and remarry, you cannot replace your former spouse with your new spouse. This does not remain in effect if your former spouse dies and you remarry (including if you already remarried). If your former spouse remarries after age 55, they will still be eligible to receive payment from your Survivor Benefit Plan. However, if they remarry before age 55, they forfeit these benefits. Finally, if you have more than one former spouse, only one may serve as a beneficiary for this plan.
The Survivor Benefit Plan can be a confusing, but important, protection policy for you and your family. If you have any questions about your policy or your rights during your divorce, we recommend reaching out to your installation's finance or accounting office.
For most military spouses, health insurance is provided through Tricare. So what happens when, as a civilian married to an active duty service member, you encounter divorce? Whether or not you will still qualify for coverage under Tricare will depend on several factors. If you and your partner have children together, then they will continue to receive Tricare coverage throughout their childhoods. But for most former spouses of military members, their Tricare coverage will end shortly after the divorce.
To continue to receive Tricare coverage, you must meet three criteria. First, you cannot qualify for health insurance coverage through your current employer. Second, you cannot remarry. Third, you must meet the 20/20/20 or 20/20/15 rule.
When researching military divorce, you will probably see countless references to years served, years married, and the overlap between these numbers. The 20/20/20 and 20/20/15 rules are just a couple examples of this. In layman's terms, for the non-military spouse to qualify for Tricare following divorce they must have been married to their service member spouse for 20 years, with this marriage overlapping with active duty service by either 20 or 15 years. While those with a 20-year overlap will typically qualify for full Tricare coverage, those with a 15-year overlap will receive only one year of coverage following divorce.
What if I don't meet the 20/20/20 or 20/20/15 requirements?
If you are a former military spouse who does not meet either the 20/20/20 or 20/20/15 requirements, you do still have some military-based health care options. For 36 months after your divorce is finalized, you can obtain premium-based health insurance through the DOD Continued Health Care Benefit Program. You have 60 days to enroll in this program after you lose your Tricare health coverage.
After the 36 months of coverage has passed, you will need to find alternative health coverage through your employer or another source. Again, your children can continue under Tricare until they are at least 21 years of age.
On-base privileges range from discounted groceries, tax-free shopping, and recreational activities for you and your family. But when divorcing a service member, you will likely need to move off-base and back into civilian housing.
If you and your former spouse meet the 20/20/20 rule mentioned above, then you will remain entitled to base privileges. However, you will lose these privileges if you remarry. If you don't meet the 20/20/20 requirements, then you will not qualify for any base privileges after military divorce.
How Do You Handle a Military Divorce Overseas?
The military divorce process can run into complications if you or your spouse are currently stationed overseas. In some case, the United States does not recognize divorces filed in foreign countries. For this reason, it's best to wait until you are state-side to file your divorce papers. And you must file these documents in the state which you and your spouse reside for them to be valid.
While it's rarely recommended, some military couples do decide to file while located overseas. If this is the case, the government may pay for the former spouse and their property to move back to the US while the active duty service member finishes their tour of duty.
Since military families often move from place to place, deciding which state to file your divorce can also be difficult. Most legal experts recommend considering where assets like your bank account or real estate reside to determine the best state to file in. Other factors like where you vote, pay state taxes, or even go to church can also come into play.
Remarriage After Military Divorce
As we covered above, there are many benefits that a former military spouse is no longer eligible for after remarriage. But in some cases, your individual divorce ruling will dictate the longevity of these benefits after remarriage. If not, the general rule is that non-monetary benefits end after the non-military former spouse remarries. Typically, this means that benefits like health insurance and base privileges end following a new marriage. Retirement or pension payments, though, will remain.
If you are the active service member in your current or past relationship, then you have little to worry about regarding remarriage and benefits. The main consideration you must make is the impact opting for former spouse coverage on your Survivor Benefit Plan will have on a future spouse. Otherwise, your new spouse will qualify for benefits much the same way as your former spouse did.
Embracing the Future After Military Divorce
Military divorce is a difficult period for everyone involved. But as you move through the filing and court proceedings, you will begin to see the light at the end of the tunnel. Whether you are the active duty service member who will remain at your current station or civilian spouse who must pack up and begin a new life, sometimes change is necessary to ensure the health and happiness of yourself and those you love.
If you, your former spouse, or your children are struggling with any part of the military divorce process, we encourage you to reach out to your base or installation's counseling services. Divorce might be a temporary struggle, but it can take an emotional toll nonetheless. And as you go through this challenging time, it's important to remember you have the support of your military family or fellow military spouses at your side.
Featured Image via Pixabay