Benefits of Military Divorce: The Complete Guide for [Year] (2023)

This is the ultimate guide for it.Military benefits and divorce.

Currently, approximately 1.3 million men and women are on active duty in the United States military. Another 800,000 also serve on the reservation. Like everyone else, military personnel can end up in unhappy marriages that lead to divorce.

While many of the rules and processes for a divorce are the same as for civil divorces, there are also some key differences that you need to understand, especially when it comes to benefits and how they affect each party.

I sat down with David Ruegg to better understand what these benefits are and how they manifest when a military man gets divorced.

Military Advantages 101

Before we talk about how military divorce benefits apply, to get a good frame of reference, what are some of the key benefits military members are entitled to while on duty?

There are many different military benefits available to service members and their families. In terms of retirement benefits, servicemembers may participate in either a retirement plan (defined benefit plan) or a TSP (defined contribution plan). The retirement plan pays monthly checks for the rest of a military person's life after retirement, and the TSP account works similar to a 401K plan. "TSP" is an acronym for Thrift Savings Plan.

Military members receive health care through the Tricare system, receive a "GI bill" to pay for higher education for themselves or their family members after a certain number of years of service, and are eligible to shop at the "commissary" where the Military families can buy groceries and other items at reduced prices and tax-free, and depending on the branch of military service, military members and their families can fly military transport planes for free, among other things.

In addition to direct military "benefits," many military personnel are eligible for "increased" public service pensions after they leave the military and agree to work in the private sector. In addition, private companies may offer service members additional benefits not offered to others (discounts at theme parks, movie theaters, etc.).

We have chosen to honor our service members in this country and that is a good thing because they deserve our respect and honor for their sacrifices.

Tell us a little about retiring from the military.

Military retirement pay generally refers to the monthly payments from the armed forces retirement system after a soldier retires. "Armed Forces Retirement System" is the formal name of the "Military Pension Plan". Military personnel who have completed at least 20 years of service are eligible for a military retirement benefit through this system.

How does this pension work in general?

If you entered the service before January 1, 2018 but after September 1980, you are likely in the "high 3" system, where each year of service is worth 2.5 percent of your highest three-year average salary. (higher 36 months). For example:

20 years of service x 2.5% x $70,000 High-3 = $35,000/year for retirement

If you enlisted before September 1980, you're in the final pay system: This is the same formula, except instead of using High-3 to calculate entitlement, the military uses servicemembers' final pay of pay used in the formula (which is almost always higher than the 'high 3' because it doesn't take into account the lowest salary over a 3-year period, but only uses the last salary before retirement, which it is almost always higher, due to military funding and cost of living policies).

What about those in the military who enlisted after January 1, 2018?

If a soldier entered the service after January 1, 2018, he will automatically be included in the "new" mixed pension scheme. This formula is similar to the "High 3" formula, except that instead of using 2.5% as a multiplier, a reduced percentage of 2% is used. This means that the pension plan has a "diminished" value compared to the "high-3" or "final salary" plan. To “make up” for these cuts, service members automatically make contributions to the TSP account in the blended pension plan, unforeseen contributions in the terminal salary or high-3 plans.

These posts have a "match" formula. Military personnel contribute 1% as “base due” for all service members. For Soldiers who choose to contribute to their TSP account (which is optional), Soldiers will match dollar for dollar up to 3% of base pay. If the military contributes more than 3%, the military will contribute $0.50 for every dollar the military contributes over 3%, up to 5%.

Military achievements and divorce

Military personnel should also be aware of the 10/10 rule and the 20/20/20 rule. What are these?

Regarding the 10/10 rule, if a military person divorces or enters legal separation proceedings, the ex-spouse must have at least 10 years of marriage overlapping with 10 years of military service to be eligible for direct payments from the military as "estate." ". cousin."' of the family court.

It is important to note that the 10 years are not from the date of marriage to the date of separation, but from the date of marriage to the date of divorce. So if you are almost 10 years old, the parties to a family law proceeding should consider extending the completion date of the divorce/legal separation to comply with the 10/10 rule.

If the service member is on "active duty" (the military is their "full-time occupation"), the 10 years equals 10 actual years of military service. If the service member is in the reserves (military service is their "part-time" job, where they serve at least one weekend a month and two weeks in the summer), 10 years of good service is required. A "good year" is defined as a minimum of 50 drill points earned by a reservist ("good year" is my term).

If the ex-spouse does not follow the 10/10 rule, the military will not pay the ex-spouse the price that splits the wealth directly. However, one solution to this rule is to increase the ex-spouse's child support. Although the military does not recognize "property divisions," the military will accept a lien for spousal support regardless of how many years of service coincide with the marriage. So if the parties cooperate, this could be a strategy to facilitate "direct payments" from the military to the ex-spouse, if the 10/10 rule is not followed.

It is important to note that while a military member cannot make direct payments to a former spouse who does not follow the 10/10 rule, this does not mean that the military spouse does not owe money. The "property right" still exists whether or not the military allows direct payments, and the military may be required to make direct payments for the ex-spouse's property rights.

Are there any issues related to using this alternate approach?

The problem with this alternate approach is that after January 1, 2019, due to the Tax and Employment Act, child support is no longer deductible.

This means that when a child support order is used, the military must pay tax on any money paid to the ex-spouse through the child support order, and those payments are not included in the ex-spouse's gross income and are not are deductible for the military. spouse.

Compare this to matches that meet the 10/10 requirements, where payments to the ex-spouse are included in that ex-spouse's gross pay and are excluded from the service member's gross pay.

If your divorce is after January 1, 2019, things can get complicated because you now have to account for gross and net taxes.

And what is the 20/20/20 rule?

The 20/20/20 rule is often mentioned in connection with health care benefits, particularly eligibility for lifetime benefits through Tricare for a former spouse.

It works a bit like the 10/10 rule where there must be an overlap between marriage and military service. For a former spouse to receive lifetime benefits from Tricare, the former spouse must have 20 years of marriage overlapping with 20 years of military service.

It is important to note that the military recognizes a legal separation differently than a divorce. If the parties achieve a legal separation, a legally separated spouse can remain with Tricare even if they are legally separated and even if the former spouse does not follow the 20/20/20 rule.

One thing to note about the 20/20/20 rule is that Tricare benefits may be lost even if the 20/20/20 rule is met. For example, if a former spouse remarries and is under age 55, the former spouse loses Tricare coverage even if the former spouse meets the 20/20/20 "basic" requirements. This is something to consider if the ex-spouse is eligible for Lifetime Tricare and is considering remarriage. Another common reason benefits are lost is when the non-working spouse purchases and is covered by an employer-sponsored health insurance plan.

If the marriage ended between 1985 and 1988, different rules apply under the 20/20/15 rule. The rule is that if the former spouse has been married for 20 years, but only 15 of those years coincided with credible military service, the former spouse may be eligible as follows:

If the marriage ended before April 1, 1985, the former spouse is eligible for Tricare as long as the former spouse meets the other eligibility requirements. (not remarry, etc.).

If the marriage ended between April 1, 1985 and September 28, 1988, the former spouse was entitled to caregiving benefits from the date of the divorce/annulment through December 31, 1988, or two years from the date of the ruling, whichever is later.

If the marriage ended on or after September 29, 1988, the former spouse was eligible for Tricare for one year from the date of the divorce/annulment.

So if you have been married 25 years and a military man has served in the military for 25 years but only 15 years during the marriage, this would not fall under the 20/20/20 rule. That's how it is?

It is right. The 20/20/20 rule was not met... but... the 20/20/15 rule was met.

Let's talk about how military pension is divided in a divorce. Follow us. How does it work?

Let me give you a hypothetical set of numbers to convey a concept called the rule of time formula that I use in many cases.

Let's say a soldier turns 30. At the end of 30 years, the military says, "Thank you for your 30 years of service, you're entitled to $3,000 a month.

But out of those 30 years that they served in the military, they were married to their ex-spouse for 20 of those 30 years.

See how this division of annuity payments would work.

If you take 20 years of marriage and service and divide it by 30 years of service, the ratio is two-thirds, 20 in 30 years. Essentially, two-thirds of that pension was earned during the marriage. This means that two thirds of this pension belongs to the couple.

So of that $3,000 a month, $2,000 a month belongs to the couple. This is considered “marriage money” owned by both parties. War money is divided in half. The ex-spouse would receive $1,000 per month and the military would receive $1,000 per month for the marriage allowance. The remaining $1,000, which makes up the total entitlement of $3,000, would also go to the military spouse, as this represents the 10 years of service earned outside of marriage.

However, due to the benefits freeze rule that went into effect on December 23, 2016, it is a bit more complicated. Because of this new "complicated" rule, it may not be practical to apply the "time rule" to your military department arrangement based on the date of divorce and whether or not military service is still in progress.

What is the frozen lead rule?

The Frozen Benefits Rule changed the definition of “available wages” after December 23, 2016.

Under the available definition of "inheritance" pay, the parties/attorneys could agree to a "timing rule" formula whereby any "improvements" to the plan due to increases/upgrades would be shared pro rata with both parties.

Under the definition of "new" salary available, these "enhancements" will not be shared for service members who are divorced or legally separated prior to retirement.

This means that the military requires that the ex-spouse's portion of the plan benefits be measured at the time of the divorce using the lowest rank and salary category in the military at the time of the divorce (instead of using the lowest rank and salary category in the military at the time of the divorce). the highest salary category at the time of divorce). of retirement). This means that less money will be paid to the ex-spouse.

This "new law" contradicts California law, which follows a "marital basis theory," meaning that pension benefits are assessed at retirement, with any "improvements" divided proportionately.

The rationale behind the "Marital Foundation Theory" is that an employee's spouse could not have received these "enhancements" in raises and ratios later in their career without first building the "foundation" of their career early on. , a foundation that was partly built during the marriage. Therefore, the marriage should receive some of these improvements.

The frozen benefits rule creates complications because while the definition of available wages has changed, California law has not. The result is a shortfall between what the military pays an ex-spouse and what California law says an ex-spouse can receive. Because the Frozen Benefits Rule does not change California law, the military spouse is still responsible for making up the claim difference and delaying matters.

You mentioned California law, where you primarily practice. Most other states are also looking at it from the same perspective in terms of the Marital Foundation Theory that you were referring to.

Yes, but not all states. There are some states that have already followed this type of benefit freeze, and this new law is not really "new" to them. But most states follow California's point of view, and when this new law was enacted, many states were caught off guard, and attorneys in many states across the country are still wrestling with the ramifications and consequences of this rule. of frozen profits.

But is it fair to say that military rules override all state laws?

Yes, because the military rules follow the federal rules. And so, by the federal doctrine of prevention, federal regulations prevail over state ones when there is a conflict.

What are the methods of splitting the pension?

There are three ways the military will accept a military division order. You can type a percentage, you can type an amount of money, or you can type a hypothetical bond.

You can specify a percentage the traditional way (33% of total monthly benefits) or by using a formula that converts to a percentage, such as B. the time rule formula. For example:

The participant's cumulative benefit (as defined in the plan) is assigned:

If we add data points, it could look like this: 20 years of service earned during the marriage divided by 30 years of total service equals 66% of the states as a percentage and if you multiply that by 50%, the percentage result would be 33%. of total monthly payments.

In addition to the percentage (or the formula that converts to a percentage), the military accepts a dollar premium to pay a former spouse monthly. However, be careful when using a dollar amount in military plans, as the military has issued regulations that cost-of-living adjustments are excluded when a dollar amount is used (this applies even if the court orders the military to include cost of living). , which means that the military will not disobey your order, they will just ignore parts of it).

For example, if you wrote on an application, "Former spouse receives $500 per month plus reasonable cost of living increase," the military would only pay $500 per month and ignore the rest in terms of cost of living.

This is a different process than many litigants with private plans are used to. If you write something the plan doesn't agree with, the plan will reject the entire application and ask you to rewrite it to correct the sections the private plan doesn't agree with. The military will only process "parts" of the order.

And how does a hypothetical order work?

The hypothetical order is not based on a percentage or dollar amount of the actual payment. It is a "compound" salary. For example, you might say 50% of the salary of a military member who has served 25 years on a pay scale of $4,000 per month. Even if the number of years does not match the military service or pay scale, the military uses these "made up" numbers and applies them to the case.

How is disability compensation handled?

There are a few different forms of disability compensation under different military regulations. Some forms of disability compensation affect the pension plan, while others do not.

Example 1: A servicemember may be eligible for disability benefits but may not be eligible for lifetime assistance, depending on the type of injury.

Example 2: A service member may be eligible for the disability benefit and an annuity, and the disability benefit may affect the pension: Service member served 20 years and was injured and received a 20% VA disability rating. In this scenario, the service member must "give up" a dollar-for-dollar portion of their retirement plan to receive tax-free disability benefits.

It is important to note that VA waivers have a rating system between 10% and 100%, but waivers are only required for ratings between 10% and 40%. Once a servicemember achieves a rating of 50% or higher, the servicemember will receive what is known as a Concurrent Retirement and Disability Payment (CRDP), which means the servicemember will receive their full retirement benefits and disability, without the need for a waiver.

Another form of disability compensation is Combat Related Special Compensation (CRSC). There are certain eligibility requirements to receive this form of disability benefit, and in many cases, the violations are serious. This type of disability compensation may or may not require a pension exemption.

And how is the disability pension managed in the event of divorce?

They are always treated as separate property. Even if the annuity plan is "waived" to receive disability benefits, according to the Supreme Court case Howell v Howell, the service member does not have to "repay" their ex-spouse for a loss due to the "waiver." because that means the disability payments would be split. Thus, waiving disability can often result in a reduction in the ex-spouse's monthly payments, and the ex-spouse simply runs out of money.

What military medical services are offered?

The military provides health care through its Tricare plan, which is open to all military personnel currently on duty. Service members who have served at least 20 years are eligible for lifetime medical benefits from Tricare. Former spouses who know each other on 20/20/20 are also eligible for lifetime medical benefits under Tricare, as noted above.

State courts do not have the authority to make or rule on claims for medical benefits. Former spouses are not, or are not, federally entitled to these medical benefits when they marry into the military.

Let's talk about the GI bill. What is it and how does it affect a divorce?

The GI Bill is an educational program that provides funds for the education of the service member or their spouse or child.

It is important to note that the military can transfer these benefits to a spouse or child under the GI bill, but NOT to a former spouse. Therefore, if the money in the GI account is "saved" for the soon-to-be-divorced spouse, that spouse should make sure that money is distributed before the "formal date of divorce."

Looking at the classification of GI benefits, it is clear that these benefits are considered the private property of the military spouse. Even if a state court order orders the military to provide those benefits to a spouse or child, there is no mechanism to enforce that order directly with the military. The only way out is to "pressure" the military to comply with the conclusions of the state court.

To put "tooth" in court orders regarding GI bill benefits, the ex-spouse may consider including penalties in their non-compliance settlement agreement. For example:

The servicemember and former spouse agree that the GI bill claim will be used on their child. If the service member chooses not to remit GI bill benefits to her child, the service member must pay $30,000 from the service member's bank account to the former spouse.

What can you tell us about military divorce survivor benefits?

Upon the death of the Service Member, "Benefits" cease for all parties. The Survivor Benefit Plan, also known as the "SBP," provides a spouse or former spouse with a benefit for life after these "pension benefits" expire if the servicemember predeceases the spouse/former spouse.

The SBP should not be confused with the SGLI, which is a different life insurance program.

The SBP plan is directly linked to Social Security. Unless otherwise noted, this is a continuation of the 55 percent military pension.

The Survivor's Pension is not only open to divorced couples, but also to married couples. There is a cost associated with SBP coverage that differs for reservists and active affiliates, but in general the cost for retirees is 6.5% of base salary. This can be expensive, and many military families have chosen to purchase private life insurance or simply gamble that the service member will live a long life, making the cost of the SBP financially unfeasible (this is particularly true for those members who begin their pension payments in their 40s).

When discussing SBP in the context of a divorce, there are many different rules, dangers, and deadlines that must be strictly followed or you will lose SBP coverage.

For example, there are two deadlines you need to keep in mind when applying for SBP coverage. Service members must apply for SBP for their spouse/ex-spouse within one year from the date of divorce. Former spouses must apply for SBP insurance within 1 year of receiving SBP insurance.

There are other complications to consider when considering SBP coverage, such as: B. Remarriage and beginning of benefits, so it may be best to consult an experienced attorney to ensure you meet all requirements.

Is the divorced spouse entitled to VA benefits?

No, a divorced spouse is not eligible for VA benefits.

How would someone know if their ex-husband or ex-wife had a TSP (Thrift Savings Plan) account?

You can send a letter to HR management. For identification and verification purposes, you must include the social security number of the military member and spouse/ex-spouse, the date of birth of the military member and ex-spouse, and basically say: "I need TSP statements for this military member in order to my divorce." Here is my divorce case number.

The human resources management responds and sends you a letter with the requested statements or replies that there is no account.

Note: A subpoena is not required, and if you submit a subpoena, the Office of Personnel Management will not respond with any documentation. They will respond with a letter that essentially says, "We do not respond to subpoenas because we are a federal agency and we do not have to respond to subpoenas from state courts."

Here is a suggested language:

SENT BY FAX 703/592-0151 AND US MAIL

TSP Legal Processing Unit

post office box 4390

Fairfax, Virginia 22038-4390

RE: Participant: {Participant} County Case Number: {CaseNumber}

Participant SSN: {ParticipantSSN} Participant Date of Birth: {ParticipantSSN}

Alternate Payee: {Alternate Payer} Relationship: Former Spouse

Alternate Payee SSN: {AlternatePayeeSSN} Alternate Payee Date of Birth: {AlternatePayeeDOB}

Dear Administrator of the Legal Processing Unit of the TSP:

I represent {AlternatePayee} and, in accordance with its policies and procedures, and in the event of a Dissolution Claim, request the following documentation:TSP Statements (any available): From {DateMarriage} to the present.

These records are necessary to calculate the alternate payee's community interest in the participant's TSP. The addresses of both parties are as follows:

You can submit the logs here:

{Name last Name}

{Address Line 1}

{Address line 2}

Call me with any questions.

carefully,

{Business}

{Name last Name}

Supervision:

Office of Human Resources

Website:

Office of Human Resources

Main address:

1900 Oststr., NW
Washington, DC20415

Phone number:

1-202-606-1800

TTY:

1-800-877-8339

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