Military Divorce: What You Need to Know
Military divorces and separations are unique. These cases are different from civilian divorces in that they bring special, military-only benefits to the bargaining table, military retirement and health benefits are different from those of civilians, and strict rules apply to which benefits a spouse will maintain post-divorce. Whether you or your spouse are in the military, and whether either of you are active duty, in the reserves, or retired, it is very important that you work with an attorney well-versed in military benefits and military divorce.
Anyone familiar with military life knows that many factors make the lifestyle unique. While no blog article could outline every facet of what makes military divorces special, below are a few points that a military member (active duty, reserves, or retired) and his / her spouse should be sure to bring up with their respective attorneys.
Division of Pension (also called annuity): Servicemembers who serve at least 20* active duty years (or have the equivalent in reserves points), or who are medically retired, will draw a pension. The portion of that pension that comes from DFAS (Defense Finance and Accounting Service) is divisible at divorce. The portion that comes from the VA (Veteran’s Affairs) is intended to make the servicemember whole, and is not divisible.
*This is under the old, “legacy” system. The retirement system for military members has recently changed. Please see “Recent Law Changes”, below.
TRICARE and base privileges (PX and Commissary)
- 10 year rule: If the parties are married for at least 10 years, the servicemember served at least 10 active duty years or has the equivalent in reserves points, AND at least 10 of those years overlap, any portion of the servicemember’s pension that is allocated to the spouse at divorce may be directly deposited from DFAS into the spouse’s account.
- 20/20/15 rule: If the parties are married for at least 20 years, and the servicemember has at least 20 years’ active duty service or the equivalent, AND at least 15 of those years overlap, the 10 year rule applies, PLUS the spouse may keep TRICARE benefits for one year after the divorce decree is entered, so long as he / she does not remarry and does not obtain healthcare through an employer.
- 20/20/20 rule: If the parties are married for at least 20 years, and the servicemember has at least 20 years’ active duty service or the equivalent, AND at least 20 of those years overlap, the 10 year rule applies, PLUS the spouse may keep TRICARE benefits for life so long as he / she does not remarry or obtain healthcare from an employer, PLUS the spouse maintains base privileges for life.
- If you are a military spouse not eligible for continued TRICARE under these rules, be aware that your TRICARE benefits terminate at midnight the day before your final divorce judgment is entered. Look into CHCBP (a military version of COBRA) before your TRICARE benefits expire. Some are eligible for CHCBP for a limited time, and some are eligible for life.
Don’t leave assets on the table
- SBP (Survivor Benefit Plan) – talk with your lawyer about this. If the servicemember draws a pension, he or she may pay a relatively low monthly fee to allow the spouse to collect the servicemember’s pension if the servicemember predeceases the spouse.
- SGLI (Servicemember’s Group Life Insurance) – All servicemembers are automatically enrolled in this low-cost life insurance plan upon entering military service. SGLI can be maintained into retirement, as well, and remains a low-cost option.
You may be wondering about the SCRA (Servicemember’s Civil Relief Act), which entitles a deployed servicemember to Stay (delay) family law proceedings during deployment and during their R&R period following deployment. The Stay is not automatic. Talk with your lawyer about the SCRA.
Recent Law Changes: As in all divorces, retirement accounts must be addressed at divorce. There have been some recent law changes affecting military retirement benefits and their allocation at divorce.
- 2017 National Defense Authorization Act:
- Under the old rule, qualifying, divorced spouses of military members were granted a percentage of the marital portion (the portion of the pension earned during the marriage) based on the servicemember’s rank and years of service at retirement.
- Under the current rule, qualifying spouses are granted their portion based on the servicemember’s rank and years of service at the time of divorce.
- In 2018, the retirement benefit system for servicemembers was completely revamped, and is now both more competitive with major civilian employers and much more beneficial to members who serve fewer than 20 years. This means that now, even servicemembers with only a few years’ service will have a divisible pension at divorce. The new system applies to new military members and to those who joined after 2006 and opted in to this new plan during the 2018 opt-in period.
- The TSP (Thrift Savings Plan – this functions like a 401k) is still the primary retirement vehicle for servicemembers, but is no longer elective. Everyone is automatically enrolled.
- The military automatically contributes 1% of the servicemember’s base pay to the TSP after 60 days of service, and matches up to 5% of servicemember contributions after two years of service. The TSP vests after two years.
- Military pension is now 2% of base pay times number of years of service (slightly down from 2.5% under the old system)
- Retired members may elect to take a portion of their pension in a lump sum.
An attorney experienced in military divorce will be able to discuss these issues with you, along with other details of your military life that make your case unique. As a former military spouse, Kate is proud to serve U.S. military members and their families.