When divorce occurs between a military service member and their spouse, there are unique issues involved. Whether you are considering divorce, going through the process, or have already finalized your divorce, Alexandria divorce attorney Carolyn Grimes discusses the rights and benefits you may be entitled to in a military divorce in Virginia.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Carolyn Grimes, Family Lawyer
Carolyn Grimes – partner at the law firm Wade Grimes Friedman Sutter & Leischner PLLC, which provides full-service family law representation in northern Virginia – is a family law and divorce attorney and mediator who practices law in a collaborative model. She frequently lectures on family law topics and has a graduate degree in employee benefits law. In 2015, she was named as a top attorney by Washingtonian Magazine. To learn more about Grimes and how her firm can help with your divorce-related issues, visit www.oldtownlawyers.com.
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Read the Transcript of this Podcast Below.
What is the Uniformed Services Former Spouses Protection Act?
The Uniform Services Former Spouses Protection Act is a federal law that established that military retirement benefits could be divided in a divorce. Before the enactment of this statute, military spouses could not get a share of what’s commonly referred to as a pension – it’s actually called “retired/retainer pay” – upon divorce. If there are any lawyers out there listening and they want to look it up, it’s US Code Section 10 USC 1408.
This act contains a lot of information about the requirements for dividing military retirement pay. However, it does not say how military pay is to be divided in terms of whether the spouse gets 50%. The amount of military retainer pay that is divided is determined by state court law, but this federal statute is a statute that allows it to be divided at all because it is a federal benefit. This was a critical turning point in this area of law when it was enacted.
What are the pitfalls to watch out for in a military divorce?
In a military divorce, there are a lot of federal benefits that are available, but it depends first of all on how long you’ve been married. In order to qualify to keep your military healthcare coverage after divorce, you have to have been married to the service member while they’ve been on active duty for 20 years.
They call it a 20/20/20 marriage – you get to keep your commissary card, you get to keep your ID, you get to keep your healthcare benefits. In a 20/20/15 marriage, which has 15 years of overlapping marriage and active duty, you don’t get the healthcare benefits – but you can have the ID card, I believe. There are several former spouse groups out there – Expos is one of them – and they keep up to date on all of these changes because they are often changed.
One thing you have to realize is, don’t get divorced and cut yourself out of 20 years. The military counts for 20 years, not to the date of separation as most state courts do for determining marital rights, to the date of the divorce. Oftentimes you have a 19-year marriage, and it’s a question of, do we enter the divorce decree now or wait? Even if you have everything resolved, wait so you hit the 20-year mark and keep the federal healthcare benefits.
It doesn’t cost your former spouse anything, but you maintain the benefits, and that’s a critical thing to have. So that’s one very big issue. Another thing is, most military bases, if they’re large enough, will have a Judge Advocate General Court – that’s the lawyers for the service members. They will also meet with the spouses.
Once they meet with one of you, they can’t meet with the other. A number of them, not all of them, will prepare a Form Property Settlement Agreement. You need to be careful about signing anything, and you should have it checked with an outside lawyer. They don’t do contested divorces; they’re not there to negotiate between the two of you; and sometimes they’ll have waivers in there that you as a spouse shouldn’t sign.
Make sure you check with a private attorney and understand that the JAG lawyers cannot represent you in a contested divorce. You also have to be sure to keep your ID card – don’t give them to your spouse – if you leave, because the military controls your ID card, which you need to get on base and access the commissary and health care and bring the kids on base for health care. He or she can’t take it away from you.
It’s regulated by the government as to when you can have it, so don’t do that. If you have fault grounds in your divorce – and in Virginia, for example, fault grounds are adultery, desertion, and cruelty – you need to be careful about when or if you report anything to command. Obviously if you are in physical danger, command needs to know, because oftentimes they will address the issue with the service member.
There’s an issue that arises very public with General Petraeus’s indiscretions. If a military member commits adultery, that’s a court martial offense and they can lose their pension. Adultery is, unfortunately, not an uncommon thing to have happen, but you need to realize don’t spitefully report him or her to command, because you’re going to be hurt, too. Obviously you’re not going to lie.
If there’s an investigation and they come and ask you, like they say, “Don’t cut off your nose to spite your face.” Those are some big pitfalls to watch out for.
Does divorce affect the service member’s or their spouse’s military benefits?
The service member’s benefits aren’t affected, and they always maintain their benefits. What happens to the spouse is that you will lose your benefits depending on how long you’ve been married and when you get divorced, like I discussed earlier, which is why you have to be careful in terms of timing and also realize that you are still entitled to those benefits and commissary is very important. In this area where I am in Virginia, there are a lot of military bases and a lot of commissary.
That’s a big price discount to shop at the commissary. You are still entitled to that while you’re still married. Unless you have a 20/20/20 marriage, you’re not going to be entitled to use the commissary after divorce. The pension benefits are divided, and you’re not able to stay on the member’s’ healthcare coverage unless you have been married long enough.
If someone’s spouse is currently deployed overseas, can he or she still file for divorce? How does that process work?
If your spouse is deployed, you can file for divorce. You need to be sure you’re in the right jurisdiction. Here’s a common thing that happens: If you’re married to a sailor – he’s off at sea for six months – you don’t want to stay in Norfolk where the Atlantic fleet is headquartered in Virginia. You go home to Oklahoma to mom and take the kids, because why should you be there for six months?
Generally, most states’ law is that the last place you lived together as husband and wife is a place to file for divorce, so don’t file for divorce in Oklahoma. You need to file for divorce back in Virginia because Virginia, for example, also has a special term in its jurisdiction code that allows its courts to have jurisdiction over military members for where they were stationed. If they get deployed out of Norfolk, Virginia is their residency for purposes of filing for divorce.
There are a couple other wrinkles about the retirement that I’ll get to later, but basically you can file for divorce. Getting them served is a little bit difficult if they’re in Afghanistan. You’re not going to get them served because you’re not going to a private process server and government is kind of busy. They’re not going to spend their time serving process. If they’re assigned to Europe, you can just tell command to have them served. To have them served, you can hire a private process server in Europe and countries that were British colonies because they have the same system of law that we do.
They have process servers and notary publics. It’s difficult, and you may want to consider not filing for divorce when they’re deployed because that starts the time-clock ticking on your marriage ending, but it’s not impossible. The issue where this usually arises is if you don’t get any money while they’re deployed. If you’re not receiving the pay allotment, which you should be, you can contact command and they will have the allotment sent to the spouse who’s still at home.
Are there two different parenting schedules for service members – one during deployment and one when they are back in the US? When does the regular parenting schedule resume?
Typically, military members who are on deployment are not having regular visitation because, of course, they’re deployed to places where they can’t take the children. When they are back home on leave for holidays, generally that coincides with the children’s school holidays. If it does, they have the children. If you are already divorced and you have a visitation schedule in place and the other parent is deployed or just on his military assignment and he’s sent to a different state, you can go to court to have the schedule modified so there will be one in place to match the deployment schedule as much as you can.
Or, you can leave your current one in place and it resumes when he or she comes back. There is a provision in Virginia law, and many other states have adopted this statute as well for expedited custody and visitation hearings when a military member is about to be deployed or even transferred to a different base. That allows for those custody hearings to be moved up quicker on the docket so that they can be dealt with more urgently, and the same applies for when they return expedited custody and visitation hearings if there are issues.
How can a service member ensure regular contact with his or her children during deployment? Can the military do anything to protect his or her parenting rights?
Generally, military will not get involved in custody disputes. They’re not there to mediate in any way, shape or form, and as I said, the JAG officers will try to intercede until it becomes too contested. Contact during deployment is best ensured by the court order, and enforcing your rights through court if the other parent won’t let you see the children when you are back. If you are deployed or assigned somewhere where it’s safe to have children and your court order doesn’t allow that, you should go to court to get a court order to allow it.
What is the Survivor Benefit Plan?
The Survivor Benefit Plan is part of the retirement plan. Military members, when they retire, receive what’s called “retired/retainer pay” because they are subject to recall. As part of that benefit system, they can opt at the point of retirement to elect a survivor benefit. A survivor benefit is basically the retirement benefit that’s received once a member dies. If you have an intact marriage, you generally elect a survivor benefit. The premium is 6-8% of the monthly retirement benefits.
Then when the member dies, the surviving spouse receives an amount that’s equal to up to 55% of what the total pension would be. In a divorce – especially for a long-term marriage – the divorcing spouse generally wants survivor benefit as well. The quirk with the military survivor benefit is that you can only elect one person. You can’t elect multiple ones as you can with a federal civilian survivor benefit.
If someone’s divorced and has multiple wives, they can each take a share of the survivor benefit. For the military it’s all or nothing. Usually in a long-term marriage, the courts in Virginia at least will award the full survivor benefits to the divorced spouse and each party will pay their share of it from the retirement benefits received.
If an active service member dies before retirement, is their ex-spouse covered under the Survivor Benefit Plan?
Only if they’re named as a survivor beneficiary – but they are not going to receive any of their other benefits like life insurance and the automatic death benefits that would normally be paid to a spouse, because they are not the spouse and those are not divisible in divorce.
Does the ex-spouse of the military retiree need to do anything to receive the former spouse benefits coverage?
To get the survivor benefit coverage, you need to either be awarded it in a court order by a judge or have agreed with your spouse that you’ll receive it. Then your property settlement agreement is generally made into a court order. After the divorce, you need to submit your court order, your final divorce decree, your property settlement agreement, or whatever the particular term for it is in your jurisdiction. If you have entered into a special order to divide the retirement benefits, submit that retirement benefits order to the Department of Finance and Accounting Services (DFAS) – who will be your lifelong friend, DFAS runs the military retirement complex. To submit everything immediately is best. There’s a rule for it. If you don’t submit the survivor benefit order within a year of the divorce, then you will lose it even if you have been awarded it in court. What technically happens is you submit the orders and the military inquires of the member whether they’re going to deem to elect the ex-spouse. Most of the time they don’t fill out the paperwork, so then the military DFAS will accept the court orders as a deemed election of the former spouse to obtain the survivor benefit, but they will only do that within one year of the divorce. If you submit your paperwork to DFAS one year and a day after the divorce decree is entered, they will not give you the survivor benefit. There is nothing a state court can do about that.
If a service member’s former spouse who is currently receiving survivor benefit annuity decides to remarry, does he or she lose that annuity?
If the former spouse remarries before she or he turns the age of 55, they lose a survivor annuity and you can’t get it back.
If the service member’s family is currently living on base, will the ex-spouse have to move after the divorce is final? What if they have children?
Once you are divorced from a military member, you cannot live on base. Generally, you will have been moved off base before the time of the final divorce decree and the children go with whoever has custody of them. If the ex-spouse has custody of the children, he/she and the children will have to move off base. You cannot have that benefit. You can’t live in base housing. You can’t live in base subsidized housing. It’s only for members, so you absolutely have to move.
Can an ex-spouse receive spousal support in addition to a share of the military member’s retirement plan?
There’s nothing prohibiting that. It depends on the income situation of the parties in addition to the retirement. In the Northern Virginia area, it’s not uncommon. Military members of rank, especially, retire and receive very well-paying jobs in the private sector, and long-term marriages generally lead to spousal support in that scenario. Even if they’re not of rank, if they’re a tech specialist, they can receive jobs of substantial income and there’s nothing that prohibits a former spouse from receiving spousal support in addition to a retirement share.
That’s not to say every single one is, but there’s nothing prohibiting it. It’s not that uncommon, depending on the income structure. Military members, bear in mind, start receiving their retirement as soon as they retire. They don’t have to wait until age 65 like most civilians’ benefits.
You can have someone who went in the military at age 19 and have to have 20 years to get a pension retirement. They retire at age 39, they’re drawing a pension, and they’ve got another job. It’s not that unusual to request spousal support, and again, the particular income structure depends on whether or not a party will receive spousal support.