Military Divorce

Military Divorce

Posted on May 22nd, 2019

Military Divorce

By Gloria Petroni of Petroni Law Group

If you are in the military or a military spouse, there are some additional factors that can affect your divorce. One example is that the process could take longer if one of the of you is on active duty in a remote area or have a permanent station overseas. There are also certain benefits and government assistance that will be affected by a divorce.

Exclusion to Residencies

In a military divorce, there may be up to three separate jurisdictions where one can file for divorce: the legal residence of the military member; the legal residence of the spouse; and the state that the servicemember is stationed in.

Servicemembers do not change their legal residence merely because they move to another state. The Servicemembers Civil Relief Act, (SCRA) allows servicemembers to live in one state, yet claim another state as their legal residence.

The same is not true for the spouse. The spouse’s legal residence is usually the state he/she is currently residing in. In order to file for divorce, however, in most cases, the person would have to establish “minimum residency requirements,” ranging from three months to six years.

Pensions Division is very Specific

A state court can divide retired pay in any way it chooses, subject to the laws of that state. For example, it would be perfectly legal for a court to divide military retired pay 50/50 for a marriage that only lasted two months (again, subject to the laws of that state). A state could also decide to award a majority of the retired pay to the former spouse if the state laws allowed such a division.

In Nevada, which is a community property state, the pension accrued during the marriage, not the pension accrued prior to the marriage, is equally divided.

If the parties are not married for ten years, the service member must pay his spouse the pension payment directly to his spouse.

In order for the Department of Defense (DOD) to make direct payments of a military member’s retired pay to the former spouse, the following guidelines must be met:

  1. The ex-spouse must have been married to the military member for a period of at least 10 years, with at least 10 years of the marriage overlapping a period of military service creditable to retired pay.
  2. Direct payments will not be made for the division of retired pay in excess of 50 percent (If there is more than one divorce, it’s first come, first serve — no more than 50 percent will be paid as a division of retired pay.
  3. Disability pay is not subject to division as property. It is subject to garnishment for alimony or child support, however.
  4. Alimony or child support can be paid in addition to the division of retired pay. In this event, DOD Finance will not pay over 65 percent of an individual’s disposable retired pay for property division and alimony/child support.

It is imperative that an expert prepare such divorce order for the proper division of the pension between the service member and his spouse.

How BAH Works

Basic Allowance for Housing, or BAH, can be affected by divorce, but in most cases, you’ll continue to receive it. It may be adjusted to reflect your new marital status, depending on whether you have children. BAH is exactly what it says, it is money given to you by the government to help you pay for housing. 

The government determines BAH based on several factors, including pay grade, if you have dependents, the median housing costs for the area you are stationed or where your family is living. Generally, it will not cover all costs, but it should meet about 80 percent. In a divorce, it can be affected in a couple of ways. If you and your spouse have no children together, and if you are the service member, you’ll continue to receive BAH post-divorce, provided you don’t move into single-unit government housing. If you continue living off-base, you’ll receive the BAH-WITHOUT rate rather than the BAH-WITH rate because you no longer have a dependent — your spouse. However, if there are children involved, it can become more complicated.

You’ll continue to receive BAH, but at either the BAH-DIFF rate or the BAH-WITH rate, depending on your custody arrangement and where you live post-divorce. If you move into single-unit government housing after your divorce and your ex has custody of your children, you’ll receive BAH-DIFF if your child support obligation is at least as much as that calculated amount. If you live off-base, you can still claim your children as dependents and qualify for BAH-WITH, even if you don’t have custody.

However, your child support obligation must be equal to or greater than the BAH-DIFF rate you would have received if you lived in single-unit government housing. If you do have custody, your children are your dependents, regardless of the fact that, in most cases, you would not be paying child support.

GI Bill in a Divorce

Lastly, the GI Bill is the post-9/11 bill that provides education benefits to servicemen and women along with their immediate family members. The VA will pay up to three years’ benefits for approved programs. This includes such payments as in-state public institution tuition and fees, monthly housing, books, supplies, and one-time rural benefit payment.  

GI benefits are not a marital asset, meaning they are separate property belonging exclusively to the servicemember. The spouse is not entitled to a share of those benefits by a divorce court unless the service member agrees. This could be awarded to the nonservice member spouse if he or she requests alimony so that the alimony could be reduced by this education benefit. This enormously generous benefit comes with a 15-year clock, meaning it is an ideal asset to transfer to your children. It is by default exclusively the benefit of the servicemember, so you have to make some effort to transfer it to either your children or spouse.

The transfer of benefits must be done before the divorce is final and while the service member is on active duty.