Military members and their spouses, just like people who have no military connection, may decide to legally separate. Sometimes, they have hope that their marriage can be restored. Some may decide to enter a legal separation indefinitely so that the nonmilitary spouse can retain some spousal benefits. In other cases, the military spouse may abandon his or her family.
No matter what the military couple’s relationship problems are or reason for the separation, the nonmilitary spouse retains spousal benefits while separated. This changes when the couple divorces and the court issues a final divorce decree.
Divorce proceedings for those in the military are litigated in state court according to the specific laws of the state where the proceedings are filed. In addition, there are federal laws and military regulations that apply to benefits that military spouses are entitled to receive.
Are There Alternatives to Divorce?
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Should I Start Looking for a Divorce Attorney?
Although a Judge Advocate General (JAG) officer can provide a separating or divorcing member of the military or the member’s spouse general advice about military benefits, the officer cannot provide advice to both. The officer cannot represent either spouse in state court. Since divorces are dealt with in state court, attorneys in the state where the divorce petition is filed must be retained.
The state attorney selected should be one familiar with how military regulations and federal statutes affect divorce proceedings. Specific laws and regulations include: Servicemembers Civil Relief Act (SSCRA), Uniform Services Former Spouse Protection Act (USFSPA), the Survivor Benefit Plan (SBP), as well as knowledge about how garnishments of military pay can be accomplished.
Where should I file the petition?
A divorce petition must be filed in the United States even if the couple is living overseas. The petition can be filed in:
- The state where the nonmilitary spouse resides.
- The state where the military member claims legal residency.
- The state where the military member is currently stationed.
What is a Military Spouse Entitled to During Separation and Divorce?
Military benefits afforded to a spouse change depending on whether the couple separates or divorces. The length of the marriage also determines to what benefits the nonmilitary spouse is entitled. Children up to the age of 18 retain all benefits of military dependents if the military member pays more than 50 percent of their support.
Effect of Separation on Nonmilitary Spouse’s Benefits
When military families separate, or couples divorce, the effects on their family include:
· Medical Care
· Financial Benefits
· ID Changes
Housing. The right to military housing belongs to the military member. When the military member moves out of the military residence, then the family members must vacate the housing within 30 days of the date it is no longer occupied by a military member.
The military will not pay for the family members to move since the move is considered a move to accommodate a military member’s “personal problems.” Although this rule exists, the military member does not have the authority to evict the family members. The eviction order must come from the commander.
You may be entitled to a portion of your military member’s housing allowance, particularly if you were abandoned by your military spouse.
Identification Card (ID). During the separation, the nonmilitary spouse retains his or her ID card. This means the person has the same full benefits during the separation as he or she had during the marriage. The ID must be surrendered and will no longer be valid when a divorce is finalized.
Medical Care. As long as you stay married, you are entitled to medical benefits through your service member. Unless you fit one of the exceptions discussed below, you will lose your medical benefits when the divorce is final.
Other Benefits. Each branch of the military has its own policies concerning how a military member must support family members if there is no separation agreement or court order. A commander may enforce child and spousal support guidelines even if there is no court order.
Under the Uniformed Code of Military Justice, Article 92, a military member can be punished for failing to pay family support. Exceptions to this rule may be made if the nonmilitary member earns a higher salary than the military member, or if the military member was a victim of domestic abuse.
Legal Separation and Divorce Agreements
A legal separation agreement is a contract entered into by both spouses. It can cover any issue that is generally involved in a final divorce judgment. The couple can agree to the division of property, distribution of assets and debts, child custody and support, spousal support, and division of retirement income, which is generally considered property in most states.
Benefits for Those Married Less than 10 Years
When the divorce is finalized, a nonmilitary spouse retains no military benefits if the marriage lasted less than 10 years. It can be a real financial jolt to you to be forced to give up your military ID and the benefits that come with it. You lose your commissary or exchange rights, your health care benefits, your rights to housing and other military family services. One asset that may be available to you is an award of the service member’s retirement pay.
Federal law leaves it to the states to consider whether retirement pay is property that can be distributed. States are not required to award this to a nonmilitary member spouses, but if they do, the law of the state is controlling. State courts can decide to award a portion of the retirement pay to the nonmember spouse even if the military member has not yet retired.
If you were married less than 10 years, you have the right to enroll in the Continued Health Care Benefit Program (CHCBP) through the Department of Defense. This coverage is almost identical to TRICARE Select. It covers preexisting conditions, including pregnancy. You are eligible to retain this coverage for 36 months after you lose your eligibility for military medical care. The coverage must be purchased quarterly.
Spouses Married 20 Years or More
When a couple has been married at least 20 years, there may be benefits available to the nonmilitary member spouse such as medical care and commissary and exchange privileges if they meet certain qualifications.
In order to qualify for military medical benefits and commissary and exchange privileges the following criteria must be met:
- You were married for 20 years. This is determined by the length of time between the date of the marriage to the date of the final divorce decree (or annulment).
- Your military spouse performed at least 20 years of service creditable for retirement pay.
- Your 20-year marriage overlapped your spouse’s 20 years of military service.
- There may be some restrictions on your eligibility for TRICAE Prime depending on your own employment health care plan and other factors.
- You may qualify for medical benefits for one year following you divorce if:
- You were married for 20 years.
- Your spouse served in the military for at least 20 years which are creditable for retirement.
- There is a minimum of a 15-year overlap in the marriage and your spouse’s time in the military.
You will not have access to commissary or exchange privileges.
Survivor Benefit Plan (SBP)
When a military member dies, the SBP provides a benefit of 55 percent of the members selected base amount to a selected beneficiary. A family law court may require the military member to designate a former spouse as the beneficiary. If this happens, the member cannot change beneficiaries without a written agreement from the former spouse. Other restrictions may apply.