Military Divorces 101, Part 3

Military divorces present unique challenges and far-reaching ramifications for our clients.  This area of law is a complex mixture of several Federal and State statutes which are balanced against the servicemember spouse’s particular branch procedures and the standards and practices in your jurisdiction.  At Graine Mediation, we know the jargon, understand the issues, and are skilled at making sure that both parties have all the information they need in order to make the best settlement choices they can mutually agree upon for themselves and their children.

In this special, three-part blog post, we’ll try to demystify this process for you.

military-divorce2

SPOUSAL SUPPORT (ALIMONY):

Unique Challenges: Military divorce cases present unique challenges in terms of spousal support.  Many military spouses have given up opportunities for career advancement in order to support the career of the servicemember spouse. Military spouses, too, often end up living in places where they do not have family resources (grandparents, aunts & uncles, etc), or choice in the cost of housing, etc.  This is common in Northern Virginia, an area that is targeted by many military families as a good place to send their children to school during the final years of the servicemember’s duty. For many military families, this plan was ideal when the marriage was intact, but many parents find Northern Virginia a very expensive place to raise a family post-divorce.  There is also the factor of health insurance for the non-servicemember spouse, which is a brand new expense for most military families, and perhaps vocational training/college for the former spouse in order to “catch up” in terms of career planning.

More Information: Otherwise, the factors for consideration in a military divorce are the same as those necessary in a fully civilian divorce.  For more information on spousal support in Virginia, generally, email Robin Graine (grainemediation@gmail.com) for an advance copy of her blog article “How is Spousal Support (Alimony) Calculated in Virginia?” (not yet published as of May 2013 on http://www.fairfaxdivorceblog.com)

HEALTHCARE & OTHER MILITARY BENEFITS: 

In some instances, former military spouses are entitled to healthcare and certain other military benefits.  In other cases, they are not.  The rules are strictly military, and state courts have no say-so in determining whether a spouse will be permitted to retain her or his military benefits upon divorce.  The military rules follow:

Full Benefits (“20/20/20” Rule):  A former spouse of a servicemember is defined as a dependent, and therefore entitled to all military benefits and installation privileges, including medical, commissary, military exchanges (PX/BX), if the following criteria is met:

  • The former spouse was married to the servicemember for at least 20 years;
  • The servicemember had at least 20 years of creditable service; and
  • There was at least a 20-year overlap between the marriage and the military service.

(10 U.S. Code §1072(2)(F))

Transitional Benefits (“20/20/15” Rule):  A former spouse of a servicemember is defined as a dependent for purposes of military medical care only, and entitled to one year of transitional medical benefits (not other military benefits, such as commissary, PX/BX, etc.), when she or he does not meet the criteria for Full Benefits (above), but she or he meets the following lesser criteria:

  • The former spouse was married to the servicemember at least 20 years;
  • The servicemember had at least 20 years of creditable service; and
  • There was at least a 15-year overlap between the marriage and the military service.

(10 U.S. Code §1072(2)(G) & (H))

No Dental; Tricare Standard: For both Full and Transitional Benefits, the health coverage is for medical only, not dental.  Also, unless the former spouse pays an annual premium of approximately $230, the coverage is the equivalent of Tricare Standard, not Tricare Prime.

Suspension Of Benefits: There are several fact patterns that will result in suspension of a former spouse’s military benefits post-divorce, including the following:

  • Medical benefits are suspended while the former spouse is covered by an employer-sponsored health care plan;
  • Medical benefits are terminated upon the former spouse’s remarriage; and
  • Commissary, military exchange (BX/PX) and other installation privileges (20/20/20 spouses) are suspended while the former spouse is remarried, but reinstated if that remarriage terminates due to death or divorce.

POST 9/11 GI BILL:

Not Considered Divisible Property, but appropriately considered in settlement: Many military servicemembers have access to the “Post 911 GI Bill.” For purposes of property division pursuant to a divorce, the GI Bill is not categorized as divisible property by the state courts. However, that does not mean that the potential benefits and value of the Post 9/11 GI Bill is not appropriately considered when mediating a divorce settlement.

What is the Post 9/11 GI Bill: The Post-9/11 GI Bill provides financial support for education and housing to individuals with at least 90 days of aggregate service after September 10, 2001, or individuals discharged with a service-connected disability after 30 days. You must have received an honorable discharge to be eligible for the Post-9/11 GI Bill.

Approved training under the Post-9/11 GI Bill includes graduate and undergraduate degrees, vocational/technical training, on-the-job training, flight training, correspondence training, licensing and national testing programs, entrepreneurship training, and tutorial assistance. All training programs must be approved for GI Bill benefits.

This benefit provides up to 36 months of education benefits, which are generally payable for 15 years following your release from active duty.

What will the Post 9/11 GI Bill Pay For? Some of expenses that the Post-9/11 GI Bill will pay include:

Servicemembers are Entitled to Transfer their Post 9/11 GI Bill to their Spouses and Children:  All members of the Armed Forces (active duty or Selected Reserve, officer or enlisted), who are eligible for the Post 9/11 GI Bill, are permitted to transfer their rights to this bill when the servicemember has:

  •  At least 6 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of approval and agrees to serve 4 additional years in the Armed Forces from the date of election.
  • At least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of approval, is precluded by either standard policy (Service or DoD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.
  • Is or becomes retirement eligible and agrees to serve an additional 4 years of service on or after August 1, 2012. A servicemember is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed pursuant to section 12732 of title 10 U.S.C.

Moreover, any such transfer must be requested and approved while the member is still in the Armed Forces.

Servicemembers may transfer their Post 9/11 GI Bill to one or more of their children and spouse, or any combination of those people.

Further, the subsequent divorce of a military servicemember who had previously transferred his or her Post 9/11 GI Bill to his or her now ex-spouse, does not negate the transfer.  Further, the marriage of a child to whom a servicemember transferred his or her Post 9/11 GI Bill does not revoke the transfer, either.

Very importantly, too, the military rules state that the servicemember who transfers the Post 9/11 GI Bill to a family member retains the right to revoke or modify the transfer at any time.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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