What Is A Military Spouse Entitled To In A Divorce?

What Is A Military Spouse Entitled To In A Divorce?

Upon divorce, the spouse of a military service member may be entitled to the following assets, income, or benefits:

  1. Marital property and Income
  2. Special benefits for service members, which may or may not be considered as marital property

1. Marital Property And Income

All properties purchased during the marriage, and all separate properties that are commingled with marital assets during the marriage, are almost certainly considered marital property for both civilian and military spouses. Such properties are distributed according to the state laws, which follow either the community property distribution principle or the equitable property distribution principle. In a majority of divorce cases, marital assets are distributed on a 50/50 basis.

  • Alimony and child support too are calculated in the same manner as they are in a civilian divorce. For example, alimony in a military divorce may depend on:
    • Monthly earning capacity of each spouse after the divorce
    • Age, physical and mental health, education qualifications, and employment history of both the spouses
    • The extent of each spouse’s contribution to the marriage (childcare, homemaking, career goals, etc.)
    • Duration of the marriage
    • The standard of living the spouses enjoyed during the marriage
    • Whether and for how long will the homemaker spouse require to upgrade his/her skills to qualify for a job after the divorce

Likewise, child support is calculated in a way that helps the child enjoy the same standard of living he/she did during the marriage.

With that said, there are certain benefits that a military service member receives that may not be considered as marital property.

2. Special Benefits For Service Members, Which May or May Not Be Considered As Marital Property

Upon divorce, the spouse of a service member or former service member may or may not be entitled to all the special benefits that are specially given to service members. Before elaborating on this, know that some state laws say that if a service member enters into a legal separation, and not a divorce, with his/her spouse, then the legally separated spouse may be entitled to all the benefits that a married spouse is entitled to, except that the division of retirement benefits and the amount accumulated under the Survivor Benefit Plan (SBP) will be determined when the divorce decree is awarded.

Now, here is a list of benefits along with details on how they may be distributed in a military divorce:

Benefit Pension or Military Retirement Pension

Service members who serve for 20 years or more are awarded a benefit pension (monthly) on retirement. The pension is calculated based on the years served, basic pay, and a multiplier factor (maximum value 2.5) for the number of years served in the military.

The number of years of service multiplied by this factor gives the percentage of the basic pay that can be earned as a pension.

Let’s say, for example, a service member has served for 20 years in the military, he/she may, depending on the exact calculation, be entitled to a maximum pension of 50% (2.5×20) of the basic pay he/she drew while serving.

This scheme was valid earlier. For new service members, and for those who have chosen the blended retirement plan, the maximum retirement multiplier may be 2.

The military retirement pension is considered a marital asset even for short-term marriages. However, there are two conditions:

  1. The pension will not be paid to the former spouse until the service member retires from service.
  2. If the spouses were married for a long time, and 10 years of married life overlapped with the military service period, then the authorities will pay the former spouse’s share directly into his/her account. If the period of married life during the service period was less than 10 years, then the retired service member may have to  send the monthly payment to the former spouse. Your divorce attorney will check with the military to determine the exact method of paying your ex his/her share of the military pension.

Thrift Savings Plan (TSP)

The TSP is part of the new blended retirement benefits offered to new service members. The plan is like a 401(k) employer-sponsored plan. The employer (the military) matches the contribution of the service member to the TSP.

The TSP too is a distributable asset in a legal separation or divorce.

Veterans Administration (VA) Disability Payments

Usually, disability payments are not regarded as divisible income/assets. However, some states may consider it divisible if the service member converted his retirement into disability benefit payments. To understand the distribution of disability payments, which can be complicated, consult your divorce attorney.

Military Medical Benefits

  1. If the marriage lasted for more than 20 years, the service member served for at least 20 years, and the couple was married for at least 20 years during the service period, then the former spouse is referred to as a “20/20/20 spouse” and is entitled to the very affordable health care plan called Tricare benefits.
  2. If the marriage lasted for more than 20 years, the service member served for at least 20 years, and the couple was married for at least 15 years during the service period, then the former spouse is entitled to just 1 year of Tricare benefits.
  3. Former spouses who are not eligible for Tricare or are eligible for just 1 year of Tricare are entitled to the Continued Health Care Benefit Program (CHCBP), which can be more expensive than a regular health insurance policy.

So, in the technical sense, military medical benefits are not a divisible asset unless condition (1) stated above is fulfilled.

Published On: October 10th, 2022Categories: Military DivorceComments Off on What Is A Military Spouse Entitled To In A Divorce?
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About the Author: Marco Brown
Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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