If your spouse is or was a member of the military, divorce can get complicated. You must deal with two separate jurisdictions, that of your state and that of the United States government. Federal laws exist to protect service members' spouses, but to some extent, you’re reliant on the divorce code in your particular state.
When you first separate, the federal government steps in to protect some of your military-related privileges that have nothing to do with your state’s laws. For example, your health coverage stays in place, and you may keep your military ID, allowing you commissary and exchange access. However, you can’t remain in military housing. If you and your spouse live on base, you’re the one who must move out.
Federal law also covers your post-divorce rights to health and retirement benefits, depending on how long you were married and how long your spouse served. The Uniformed Services Former Spouses Protection Act applies to long-term marriages of 20 years or more. If your spouse was a member of the military during 15 of those 20 years, and you were married during that time, and if he has at least 20 years of service overall, you can remain on his military health plan for a year after your divorce. However, you will lose your other benefits, such as commissary privileges.
USFSPA protects your insurance coverage and all other military privileges permanently if your spouse served for at least 20 years, and you were concurrently married during that time. Your divorce decree doesn’t have to mention this provision; federal law supersedes it. Your spouse cannot do anything to prevent you from receiving this right.
The federal government does not have jurisdiction over how you and your spouse divide his military retirement benefits in your divorce. Your state’s laws decide this. After your portion is determined, however, USFSPA allows you to receive your payments directly from the United States government if you were married for 10 years and your spouse served continuously during that time.
If you have children, your state also determines how much child support you'll receive, determined by its own formula for calculating it. The difference is that your spouse’s military pay is probably more complicated than if he held a civilian job. It includes both basic pay and allowances. You are entitled to have your child support calculated using both, not just his basic pay.
If you’re divorcing a military spouse, try to find an attorney experienced in military law. An otherwise great divorce lawyer may have no experience with the implications of USFPSA or other federal provisions. It’s a specialized field. You may be better off not having your attorney learn the ropes on your time. Your benefits under the 20/20/20 rule might end under certain circumstances. For example, you can lose your health insurance if your employer provides coverage for you. If you remarry, you lose all your rights. However, if you remarry then divorce or are widowed, you can regain your commissary and other related privileges. The 20/20/20 and 20/20/15 rules apply only to spouses. If you have children together, they remain covered on your spouse’s military health plan, regardless of your divorce, until the age of 21, as long as they’re not married.
References & Resources
- Divorce Lawyer Source: Military Divorce
- Military Divorce Guide: Former Spouse Military Benefits
- Divorcenet.com: Benefits of Former Spouses of Military Personnel
- DivorceSupport.com: How is Military Pay Considered When Calculating Child Support?
- Military Divorce Guide: Division of Military Retirement
- Military.com: TRICARE Eligibility
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