What, if any, military benefits is the civilian spouse entitled to after the divorce? Is the civilian spouse eligible for commissary, exchange and health care benefits? Is the civilian spouse entitled to a portion of the servicemember’s military retired pay?
The Uniformed Services Former Spouse Protection Act (USFSPA) answers these questions.
In Oklahoma, is the civilian spouse entitled to any of the servicemember’s military retired pay?
Yes. The USFSPA itself does not automatically allow the former spouse to receive any of the member’s retired pay. Instead, it defers to the law of the state where the divorce is filed. The state is to treat military disposable retired pay as a marital asset and therefore divide it in a divorce action according to that state’s law. In Oklahoma, the civilian spouse is entitled to an equitable share of the servicemember’s military retirement earned during the marriage.
Can military retired pay be garnished?
Yes, retired pay may be garnished to satisfy child support and/or alimony judgments. Court-ordered payments for child support and/or alimony do not require a specified length of marriage.
Will retirement pay continue past the servicemember’s death?
The award for the civilian former spouse does not continue past the servicemember’s death unless there is a provision in the military pay division order known as the Survivor Benefit Plan (SBP). It must be either awarded in the divorce or elected by the servicemember at the time of the divorce (please note that “former spouse coverage” must be elected from the military finance center within one year of the date of the divorce). It is important to note that under the USFSPA, a former spouse, like a current spouse, can be designated as a SBP beneficiary. SBP is an annuity for retired servicemembers to provide income to a beneficiary upon the retiree’s death. A retiring servicemember will be enrolled in the SBP unless he or she declines to do so. As a word of caution, if divorce occurs after retirement and the servicemember had initially elected to participate when retiring; the divorce shall terminate the initial beneficiary designation in favor of the “spouse.” This means that unless the servicemember voluntarily designates “former spouse” or the court orders it, the civilian spouse will not be the SBP beneficiary.
Can a former civilian spouse receive direct payment from the military for retired pay?
Yes, if the former spouse has been married to the member for 10 years or more during the time the member performed 10 years of creditable service.
What happens to the retired pay if the civilian spouse remarries?
Remarriage may not affect the non-member’s right to a share of the retired pay. Remarriage may affect the survivorship rights under the SBP.
Can a former civilian spouse continue receiving commissary, exchange, and health care benefits after a divorce?
It depends. Pursuant to the USFSPA former spouses may continue receiving commissary, exchange, and health care benefits after a divorce only in certain instances. In order to qualify for continued benefits a 20/20/20 former spouse must show that:
1. the service member served at least 20 years of creditable service;
2. that the marriage lasted at least 20 years; and
3. that the period of the marriage is concurrent with at least 20 years of service.
A former spouse who meets these requirements is known as a 20/20/20 former spouse and is entitled to full commissary, exchange and health care benefits. These benefits include TRICARE and inpatient and out-patient care at a military treatment facility. Former spouses who do not meet these requirements lose their commissary and exchange privileges once the divorce is final. In order to qualify for 1 year of benefits a 20/20/15 former spouse must show that:
1. the servicemember served at least 20 years of creditable service;
2. the marriage lasted at least 20 years; and
3. the period of the marriage concurrent with the period of service is 15 to 19 years.
A 20/20/15 former spouse is only entitled to full military medical benefits for 1 year following the divorce. After this year of coverage, the spouse may purchase a DOD-negotiated conversion health policy. What happens to health benefits if the former civilian spouse remarries? The former civilian spouse will lose their health insurance. Full coverage also requires that the former spouse does not enroll in an employer-sponsored health insurance plan.
What happens if the civilian spouse does not qualify for the 20/20/20 or 20/20/15 benefits?
Former spouses who are neither 20/20/20 nor 20/20/15 former spouses are not entitled to any military health benefits after a divorce. But they are eligible for the DOD Continued Health Care Benefit Program, a premium based temporary health care coverage program for 36 months of coverage until alternative coverage can be obtained, if they enroll within 60 days of losing full military health care benefits. Again, remarriage terminates the ability to keep medical benefits.
Can we agree to have benefits continue if we do not quality for 20/20/20 or 20/20/15?
No, it is a statutory right and there is no discretion given to anyone to expand the privileges. Neither the servicemember nor the civilian spouse can do anything to extend benefits. If you do not qualify, there are no benefits, even if the cutoff is only a few weeks.
What if the servicemember is in the National Guard or Reserve?
Active duty service is not necessary to qualify for benefits. The time standards are met by the overlap of marriage and the career based upon a “good year” of service. The passage of a chronological year may not mean that a “good year” was credited. It depends on the accumulation of sufficient points. Please note that if the member did not make a survivor benefit election when 20 good years have passed, death before the member becomes age 60 and applies for retirement will extinguish the rights to benefits, even if there was a 20 year overlap.
The rules surrounding military members and those of the former spouse can be very challenging and it is crucial that you have an attorney who understands how each of these rules may affect the outcome in your divorce. We’re here to help. Call us today to learn more and to speak to an attorney who can assist you.