Getting a divorce when one or both spouses are military members or former military can present interesting challenges. In dealing with a military divorce there are unique rules which govern the division of military retirement, impact of deployments on parenting, whether combat related special compensation is divisible, health care and other military benefits, to name a few.
The Service Members Civil Relief Act or SCRA was designed to help deployed servicemembers stay civil proceeding that they are unable to attend. SCRA applies to all judicial proceeding, including post-decree matters, and to administrive agencies. SCRA covers active duty servicemembers, including reservists and mobilized members of the National Guard. The stay will generally last 90 days but can be extended.
Child Custody. What makes custody matters with servicemembers different? A deployment will trigger the need to modify child custody orders. Often the custody order will state that during a deployment, custody will transfer to the nonservice member. However, under the Uniform Deployed Parent Custody and Visitation Act the servicemember may now delegate their parental rights to a third party. One scenario where this often comes up is with a new spouse of a deployed servicemember. The deployed servicemember can request that their new spouse be given their same custodial rights during deployment.
Child Support. When calculating child support the Court will look at base pay PLUS any housing allowance received, VA disability benefits, and any sustenance credits. If the servicemember lives on base, the Court can impute the amount of housing allowance they would receive if they lived off base.
Military Pension, Retirement and Benefits. Retirement for active duty servicemembers comes after they have obtained 20 years of active duty service. Retired pay can be calculated one of 2 ways. If the Date of Initial Entry to Military Service (DIEMS) is before September 8, 1980 the formula will use the final base pay at the time of retirement. If the DIEMS is after September 8, 1980, then it is a High-3 formula, which takes the average of the highest 36 months of base pay as the amount for the final base pay. If the servicemember took a Career Status Bonus election between 14.5 and 15 years of service, this will change the pension landscape entirely. Military pensions have unique aspects to them, very different from civilian pensions.
Thrift Savings Plan (TSP). Servicemembers may now contribute up to 7% of their basic pay to a TSP, but with no matching funds from the federal government. It is similar to a private sector 401(k) plan in that taxes are deferred on the contributions and appreciation until disbursement. A Court must sign a Retirement Order to divide the TSP.
Survivor Benefit Plan (SBP). SBP is an annuity program that allow retired (and retirement eligible) active-duty servicemembers to provide income to SBP beneficiaries upon death of the servicemember. It has a premium, and a payout in the form of a monthly payment from DFAS. Without the SBP, if the retiree dies, the military retirement stops as well. However, to protect a surviving former spouse’s share of military retirement after a divorce, a Court can require a servicemember to elect former spouse SBP coverage. As the retiree can only have one beneficiary (except for children coverage), one effect of court-ordered SBP coverage for a former spouse is that if the service member remarries, the new spouse or children are precluded from coverage. In the event of the servicemember’s death, the former spouse receives a monthly payment of 55% of the designated base amount. The cost for the SBP premium is typically 6.5% of the designated base amount although there are other options available for those entering service before March 1, 1990. There is not a way to force DFAS to allocate the premium so that the full share comes from one party’s share of the pension. The cost must come "off the top". However, there exist other options to get around this. If the former spouse gets remarried before age 55, the SBP will terminate.
Healthcare. A former spouse who was married to a servicemember for at least 20 years qualifies for military health benefits, or Tricare. A former spouse will receive full benefits under the 20/20/20 Rule if they were married to the servicemember for at least 20 years, the servicemember has at least 20 years of service, and that the marriage and service overlap for at least 20 years. If this criteria is met, the servicemember will receive Tricare for life. For 15 years of marriage/service with 20 years of total service the former spouse will receive Tricare for one year. Medical benefits terminate upon the former spouse’s remarriage. If the servicemember has fewer that 20 years of service, the former spouse is NOT entitled to such benefits.
Hiring an attorney is an important decision. If you are a servicemember or married to a servicemember, make sure your attorney has experience with military divorce issues. If you wish to learn more, please give us a call.