Fall 2017, Issue 4

“The Clock is Ticking”—Dates and Deadlines in the Military Divorce Case (Part Two)

The first part of this article dealt with deadlines and time problems with submission of the military pension division order and the two distinct deadlines for registration of a court order for the Survivor Benefit Plan (SBP) with the retired pay center.

Separation and the Entitlement to Military Benefits

Does the date of separation matter? “Separation” is generally not a recognized measurement point under federal law. Whether the issue is garnishment and the 10/10 rule, ID cards, or medical care, federal and military rules in general are written with regard to the divorce decree or the judgment of dissolution, not the date when the parties separate.

Of course, the separation of the parties will also have an impact on continued entitlement to on-base housing. If there is a marital separation, the rules require the family members to check out of family housing; the servicemember (SM) will be assigned single quarters.

On the state level, the separation date certainly can play an important part in the military divorce case. In states such as California and North Carolina, the acquisition of community or marital property stops at the date of separation; thus, that date may be an important state law issue in determining the marital or coverture fraction which is often used to divide the pension.

Commissary and Exchange Privileges

Shopping in a military base’s commissary (akin to a grocery store) and exchange (i.e., department store) can be valuable for the nonmilitary spouse, since both of these provide items for sale at substantial savings and with no state sales tax. These exchange privileges are retained until the divorce of the parties.

To qualify for continuation of these benefits, the unremarried spouse must meet the “20/20/20” test—that is, twenty years of creditable service by the SM, twenty years of marriage, and an overlap of twenty years between these. If a former spouse remarries, she loses the entitlement during the period of that remarriage. An unremarried former spouse of a SM may use the commissary and the post or base exchange as if she were the surviving spouse of a retired SM of the military.1

ID Cards and Military Medical Coverage
A former spouse who qualifies for any of these benefits may apply for an ID card at any military ID card facility.2 He or she must complete DD Form 1172, “Application for Uniformed Services Identification and Privilege Card.” When an eligible family member receives an ID card, that information is transferred to the Defense Eligibility Enrollment Reporting System (DEERS) to ensure that the cardholder may utilize TRICARE and other medical benefits.

If there have been twenty years of marriage, twenty years of military service qualifying for retirement, and an overlap of at least twenty years, then an unremarried former spouse (FS) will qualify for full medical benefits3 as a “20/20/20” spouse. For shorter marriages, the former spouse should look into CHCBP (Continued Health Care Benefit Program) as a means of providing health insurance coverage.4 If the FS has not remarried before age fifty-five, she will be eligible for coverage if she pays the premium (around $425 as of 2015) and receives either court-ordered pension division or else SBP coverage. It is recommended that she obtain both.

The Department of Defense designated the Air Force as the proponent agency for publishing the regulations about military privileges and entitlements. The rules about these issues, as well as regarding military ID cards for military dependents and former spouses can be found in a joint service regulation, AFI [Air Force Instruction] 36-3026. One may access a copy by using an Internet search engine to search for “AFI 36-3026.”

A judgment of divorce or dissolution will affect the privileges, legal rights, and entitlements of the nonmilitary FS in many ways. A table showing the benefits and entitlements of former spouses is found at the Appendix below, adapted from that found at Appendix 6-C, The Military Divorce Handbook (Am. Bar Ass’n, 2d ed. 2011).

Federal Benefits, Negotiations, and Advocacy

It is important to remember that most federal rights and benefits—such as medical coverage—are statutory entitlements. They should not be looked upon as bargaining tools that are given, traded, conceded, or withheld during the negotiation process. They belong to any nonmilitary spouse who meets the requirements set out in the applicable statute. As to other benefits which are dependent on length of service and the date of a court order, such as SBP coverage, constant vigilance and knowledge of the critical deadlines should be part of the attorney’s duty of advocacy for the client.
* * *

[This chart and the footnotes immediately below it were prepared by the Administrative and Civil Law Department,
Legal Assistance Branch, The Judge Advocate General’s Legal Center and School, Charlottesville, Virginia.]

Uniformed Services Former Spouses’ Protection Act1 Length of Time that Marriage Overlaps with Service Creditable for Retirement Purposes3*
Number of Years
Benefits for Former Spuses2* 0 to<10 10 to<15 15 to<20 20 or more
Division of Retired Pay4* X X X X
Designation as an SBP Beneficiary5* X X X X
Direct Payment from Pay Center6*
Child Support X X X X
Alimony X X X X
Property Division7* X X X
Health Care8*
Transitional9* X
Full10* X
Insurance11* X X X X
Commisary12* X
Dependent Abuse
Retired Pay Property Share Equivalent13* X X X
Transitional Compensation14* X X X X

1* 10 U.S.C. § 1408.

2* For guidance on obtaining a military identification card to establish entitlement for health care, commissary, and PX benefits, see appropriate service regulations (e.g., AR 640-3). Former spouses of reserve component members may be entitled to these benefits; see the following notes for applicable benefits.

3* Except for Dependent Abuse Victims Transitional Compensation payments, this chart assumes that the member serves long enough to retire from an active duty component or reserve component of the Armed Forces (generally this means that (s)he has twenty years of service creditable for retirement purposes, but the time for retirement can be as little as fifteen years in the case of an early retirement under Section 504 of Public Law 112-81, which will expire December 31, 2018).

4* At least one court has awarded a portion of military retired pay to a spouse whom the retiree married after he retired, Konzen v. Konzen, 103 Wash.2d 470, 693 P.2d 97, cert denied, 473 U.S. 906 (1985).

5* Federal law does not create any minimum length of overlap for this benefit; the parties’ agreement or state law will control a former spouse’s entitlement to designation as an SBP beneficiary.

6* See 10 U.S.C. §§ 1408(d) & 1408(e) and 32 C.F.R. part 63 for further guidance on mandatory language in the divorce decree or court-approved separation agreement. The former spouse initiates the direct payment process by sending a written request to the appropriate finance center.

7* While eligibility for direct payment does not extend to former spouses whose overlap of marriage and service is less than ten years, this is not a prerequisite to award of a share of retired pay as property to the former spouse (see Note 4).

8* To qualify for any health care provided or paid for by the military, the former spouse must be unremarried and must not be covered by an employer-sponsored health care plan; see 10 U.S.C. §§ 1072(2)(F), 1072(2)(G) & 1072(2)(H). Department of the Army interpretation of this provision holds that termination of a subsequent marriage by divorce or death does not revive this benefit, but an annulment does. These remarriage and employer-insurance restrictions do not limit eligibility to enroll in the civilian health care insurance plan discussed in Note 11.

9* “Transitional health care” was created by Pub. L. 98-625, § 645(c) (not codified), as a stop-gap measure while a civilian health care plan was negotiated for former spouses and other who lose an entitlement to receive military health care (see Note 11). The program subsequently was modified and narrowed by the National Defense Authorization Act, Fiscal Year 1989, Pub. L. 100-456, Title VI, § 651, 102 Stat. 1990 (1988). Current program benefits are described at 10 U.S.C. § 1078a titled “Continued Health Benefits Coverage.” Qualifying former spouses are those who are unremarried, who have no employer-sponsored health insurance, and who meet the “20/20/15” requirement (i.e., married to the member for at least twenty years, and the member has at least twenty years of service that are creditable for retirement purposes, and the marriage overlaps at least fifteen years of the creditable service). Transitional health care now includes full military health care for one year after the date of the divorce, and during this period the former spouse is eligible to enroll in the civilian group health care plan negotiated by DOD (see Note 11).
Note that for health care purposes, 10 U.S.C. § 1072(2)(G) treats a 20/20/15 former spouse as if he or she were a full 20/20/20 former spouse (twenty years of marriage, twenty years of service, and twenty years of overlap) if the divorce decree is dated before April 1, 1995. A 20/20/15 former spouse of a reserve component retiree with a divorce decree prior to April 1, 1985 can receive full health care too, but only if the member survives to age sixty or if he or she elected to participate in the Reserve Component Survivor Benefit Program upon becoming retirement eligible.

10* “Full health care” includes health care at military treatment facilities and that provided through the TRICARE insurance program. A former spouse of a reserve component retiree is eligible for this benefit upon the retiree’s 60th birthday (or on the day the retiree would have been sixty if (s)he dies before reaching age sixty) if (s)he meets the normal qualification rules (i.e., an unremarried 20/20/20 former spouse who is not covered by an employer-sponsored health care plan); see 10 U.S.C. § 1076(b)(2).

11* The Department of Defense Continued Health Care Benefit Program (CHCBP) may be found at 10 U.S.C. § 1078a. It is a premium-based program of temporary continued health benefits coverage available to eligible beneficiaries. Medical benefits mirror those available under the standard TRICARE program, but CHCBP is not part of TRICARE. For further information on this program, contact a military medical treatment facility health benefits advisor, or go to http://www.tricare.mil/chcbp.

12* Pursuant to statute and service regulations, commissary and PX benefits are to be available to a former spouse “to the same extent and on the same basis as the surviving spouse of a retired member…” Pub. L. 97-252, Title X, § 1005, 96 Stat. 737 (1982); see Army Regulation 640-3. The date of the divorce is no longer relevant for commissary and PX purposes. See Pub. L. 98-525, Title IV, § 645, 98 Stat. 2549 (1984) (amending Uniformed Services Former Spouses’ Protection Act § 1006(d)). The former spouse must be “unmarried,” and, unlike the rules for health care, any termination of a subsequent marriage revives these benefits. Qualified former spouses of reserve component retirees receive commissary and PX benefits when the retiree reaches age sixty (or when (s)he would have reached age sixty if the retiree dies before that time, but in such cases the entitlement arises only if the retiree elected to participate in the Reserve Component Survivor Benefit Plan when (s)he became retirement eligible; see AR 640-3). Notwithstanding the provision of the Act and the regulation, however, the extent of commissary and exchange privileges in overseas locations may be restricted by host-nation customs law.

13* When a retirement-eligible member receives a punitive discharge via court-martial, or is discharged via administrative separation processing, the member’s retirement benefits are lost. In certain cases where the court-martial or separation action was based on dependent abuse, eligible spouses may receive their court-ordered share of retired pay (divided as property) as if the member had actually retired. Authority for these payments was created in the National Defense Authorization Act, Fiscal Year 1993, § 653, Pub. L. 103-484. An overlap of marriage and service of at least ten years is a prerequisite to receipt of payments. The National Defense Authorization Act, Fiscal Year 1994, § 555, Pub. L. 103-160, clarifies that eligibility begins on the date the sentence is approved and does not have to wait until the member is actually discharged.

14* The National Defense Authorization Act, Fiscal Year 1994, § 554, Pub. L. 103-160, also creates authority for monthly transitional compensation to dependents of a non-retirement eligible member separated from the service by reason of dependent abuse.

1 10 U.S.C. § 1062.

2 The nearest military support office for a spouse or former spouse to visit can be found at the Real-Time Automated Personnel Identification System (RAPIDS) Site Locator on the web at http://www.dmdc.osd.mil/rsl.

3 That is, TRICARE plus treatment on a space-available basis at military medical treatment facilities.

4 10 U.S.C. 1078a; see also 32 C.F.R. § 199.20.