Military Divorce: 5 things you need to know before you say “I don’t”- Part II

by Rama Taib-Lopez
July 14th, 2016

This is Part II of a 2-part series on common issues and challenges military servicemembers and their spouses face during a divorce.  Click here to read Part I on jurisdiction, the Servicemembers Civil Relief Act, and calculating military income for spousal or child support issues.

Part II

  1. Will Military Retirement Pay be Divided, and if so, how?

One of the biggest issues you can encounter is the division of your or your spouse’s military retirement pay.  The Uniformed Services Former Spouses' Protection Act (USFSPA) governs military retirement pay and provides the state courts the authority to divide a servicemember’s military retirement pay in a divorce.   

In Maryland, military retirement pay, though seemingly akin to a pension, is not considered “marital property” subject to division upon divorce. However, Maryland law includes military retirement pay as a source of income when calculating alimony and/or child support.

A common misconception among many servicemembers and their spouses surrounds the so-called “10/10 Rule.”  Some misunderstand the “10/10 Rule” to mean that a couple has to be married for 10 years before a spouse has a right to any portion of their spouse’s military retirement pay.  Others mistakenly believe that the “10/10 Rule” requires the parties be married for ten years during active duty service before a spouse is entitled to any portion of their spouse’s military retirement pay. The “10/10 Rule” actually has nothing to do with a state court’s authority to divide a servicemember’s retirement pay upon divorce. 

The “10/10 Rule” only determines whether a former spouse is eligible to receive payments directly from Defense Finance and Accounting Service (DFAS), the office responsible for paying military retirement benefits. Even if you don’t meet the requirements of the 10/10 Rule, you may still be entitled to a portion of your spouse’s pension.  It just means that the servicemember obligor must make his or her payments through another method, such as by check or setting up an allotment for automatic payment. 

So, what is the “10/10 Rule”?

DFAS may make direct payments from a servicemember’s military retired pay to a former if the following 3 requirements are met:

1.You and your spouse have been married for at least 10 years;

2.The military spouse has at least 10 years of service creditable towards retirement; and

3.Those 10+ years of creditable service occurred during the marriage.

It is also important to note that eligibility under the “10/10 Rule” is measured from the date of marriage until the date of divorce, not the date of the parties’ separation.

  1. What health insurance plans are available to a former military spouse?

If you are a military spouse in the middle of a divorce, the ability to keep full military benefits may be one of the most important factors to you. 

A former spouse may be able to maintain lifetime medical coverage through Tricare, access to the military exchange, base privileges and commissary privileges after the date of divorce if the “20/20/20 Rule” requirements are met. The three requirements are:

1.You and your spouse have been married for at least 20 years;

2.The military spouse has at least 20 years of creditable service; and

3.There is an overlap between the marriage and creditable service by a period of at least 20 years.

However, if the former spouse receives coverage by an employer-sponsored health care plan, his or her medical benefits will be suspended.  If the former spouse remarries, their medical benefits will be terminated and their base privileges, commissary privileges, and access to the military exchange will be suspended.

If a former spouse falls short of meeting the “20/20/15 Rule” requirements, he or she may still be eligible for transitional Tricare coverage for a period of one year after the date of divorce.  After one year, the former spouse may elect to participate in the Continued Health Care Benefit Program for a period of three years.  To qualify for transitional military benefits, a former spouse must satisfy these requirements:

(a)You and your spouse have been married for at least 20 years;

(b)The military spouse has at least 20 years of creditable service; and

(c)There is an overlap between the marriage and creditable service by a period of at least 15 years.

Unlike the benefits retained under the “20/20/20 Rule,” a former spouse qualifying for transitional coverage under the “20/20/15 Rule” will not have access to the military exchange, base privileges or commissary privileges.  If the former spouse remarries or receives coverage by an employer-sponsored health care plan, their medical benefits will be suspended. 

Former spouses who do not qualify for continued coverage under either the “20/20/20 Rule” or the “20/20/15 Rule” may still elect to participate in the Continued Health Care Benefit Program regardless of the length of marriage or creditable service.

In order to be eligible to participate in the Continued Health Care Benefit Program, the former spouse must have been covered under Tricare on the day before entry of a final divorce decree.

A former spouse will be eligible to keep medical coverage through the CHCBP indefinitely so long as the following conditions are met:

  1. the former spouse does not remarry before the age of 55;
  2. the former spouse must have been enrolled as a dependent in an approved health care benefits program (Tricare, DEERS, CHCBP) at any point in time during the 18 months before the end of the marriage; and
  3. the former spouse is receiving a share of the servicemember’s military retired pay or Survivor Benefit Plan annuity, OR has a court order for the payment of any portion of the servicemember’s military retired pay, OR has a written agreement providing for an Survivor Benefit Plan annuity for the former spouse

While this 2-part series touches on a number of common issues facing military servicemembers and their spouses during a divorce, there are still a multitude of additional issues at play in a military divorce.  Oftentimes, a military servicemember and their spouse seek the services offered at a local military base for guidance in family law matters.  However, consulting an attorney knowledgeable in Maryland’s divorce and custody laws and experienced in dealing with mili­tary issues can help you navigate through the specific issues you, your spouse, and your family may face.

Rama Taib-Lopez represents individuals throughout Maryland in complex family law disputes and related immigration matters that often arise involving non-citizen spouses and special immigrant juveniles. She has extensive courtroom and alternative resolution experience in every type of family law dispute and immigration proceeding her clients may encounter, with a particular focus on the following:

Contact Rama Taib-Lopez

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