Published on September 6, 2021

Dealing with Divorce in the Military

Divorce is not only emotionally challenging but is also a complicated legal process that will directly affect your post-divorce life, and a military divorce comes with additional complications. If you are facing a military divorce, the surest way to protect your financial and parental rights throughout the process and beyond is with a dedicated Yakima, Washington, divorce attorney – who has extensive experience successfully handling military divorces like yours – on your side.

In Which State Should I File?

When civilians seek divorce, it is generally fairly obvious where they need to file, but for military couples, this matter is often far less clear. In fact, you may have all of the following factors to consider:

The address where you shared a home with your spouse
Your home of record
The address where you currently reside

If these are all in different states – or even different countries – it complicates the matter considerably, and if your spouse is also in the military, things can be even more challenging. If you and your divorcing spouse share children, you’ll need to file for divorce in the state that has jurisdiction over their custody, and this boils down to the state where they’ve resided for at least the last six months (this jurisdiction over your children’s custody cannot be overridden). As such, if your children have been living in the Yakima area for at least six months, you’ll likely file here. An important point to make, however, is that the only state with the power to divide the military member’s military pension is the state of his or her legal residence (unless the military spouse consents to another court’s division).

Can a Servicemember Slow Down the Divorce Process?

Generally, when one spouse files for divorce, the other has a specific number of days to respond, and this begins the divorce process, which will proceed according to the divorcing spouse’s negotiations and the court’s docket. If, however, one of the parties involved is on active duty, there is a federal law called the Servicemembers Civil Relief Act (SCRA) that can alter the normal scheduling. This law allows service members who are on active duty to request what is known as a stay that delays the divorce proceedings for at least 90 days. While this stay can be extended, a spouse on active duty cannot postpone a divorce indefinitely.

Will the Military Provide Me with a Lawyer?

While the military will not provide you with a divorce lawyer, every branch of the military has legal assistance attorneys who, although they cannot represent you, can help you with some of the divorce basics (whether you are the service member or his or her spouse), including:

Writing letters on your behalf
Reviewing and editing your legal documents
Helping you negotiate fair divorce terms
Answering your legal questions (including any posed by your dedicated divorce attorney)

Having your own focused divorce attorney –with considerable experience handling military divorces – however, is always in your best interest.

How Is Child Support Calculated and Collected?

Generally, child support will be calculated in accordance with the state in which you divorce. As such, in your Washington divorce, the primary factors involved in calculating your child support include you and your divorcing spouse’s income and your children’s living arrangements (how many overnights they spend with each of you). When it comes to the military member, the court will consider all the following in making the child support calculation:

His or her base pay
His or her basic allowance for housing
His or her basic allowance for subsistence
Any special pay he or she receives
The potential for these amounts to vary depending upon the service member’s deployments, base transfers, and more (as applicable)

Child support for military families is generally paid through the same mechanism that is used for non-military families, which is wage garnishment and which is managed by the Defense Finance and Accounting Service (DFAS) for every military branch except the Coast Guard.

An important note to make is that, prior to child support being established by the court involved, the military can provide you with direct financial assistance. Military members are required to support their children (like all parents are), and the base’s legal assistance attorney can help you obtain the support you need while your divorce case is pending.

Can I Keep Healthcare Coverage after My Military Divorce?

If you are the non-military spouse in a military divorce, you have two options available to you regarding your post-divorce health insurance.

TRICARE

TRICARE coverage is no-cost, comprehensive coverage, but the requirements for qualifying are rigid and include:

You must have been married to your spouse – who is a service member – for at least 20 years.
At least 20 years of your marriage must have been while your spouse was on active duty.

This is often referred to as the 20/20/20 rule, which means 20 years of service, 20 years of marriage, and 20 years of overlap. If you are moving toward divorce and are also close to reaching this important benchmark, seeking a delay in the finalization of your divorce may be advisable. Two important points to keep in mind with TRICARE coverage include:

If you have additional healthcare coverage, TRICARE will kick in where your own coverage ends (in the role of the secondary payor).
While TRICARE is lifetime coverage, it will no longer be available to you if you remarry.

Conversion Health Coverage

If you are not eligible for TRICARE, you can buy into what is known as conversion health coverage – called the Continued Health Care Benefit Program (CHCBP) – which is available for ongoing purchase if you meet the following conditions:

You were covered by TRICARE at any time during the 18 months prior to your divorce.
You do not have any other health insurance coverage.
You are entitled to a share of your ex’s pension.
You are not remarried (if younger than 55).
You pay advance quarterly premiums for the CHCBP coverage.
You meet all the application’s deadlines, including enrolling in CHCBP within 60 days of losing health insurance coverage (which generally means within 60 days of your divorce being finalized).

What Is a Thrift Savings Plan?

During active service, many service members contribute to Thrift Savings Plans (TSPs), which are retirement savings plans that correlate with civilian retirement plans such as IRAs and 401(k)s. It is easy to lose sight of this asset in the divorce process, but your spouse’s TSP is a marital asset (or the amount that it increased in value during the course of your marriage is), which should be divided equitably in the division of your marital property (or should be addressed via another asset).

What Is a Survivor Benefit Plan?

Survivor benefit plans (SVPs) refer to death benefits that service members can purchase upon retirement, and these plans’ beneficiaries are generally the service members’ spouses or former spouses – who receive ongoing benefits upon the service members’ deaths. It’s important to know that the court can require your spouse to obtain SBP coverage in your divorce. As with most things that combine the military and divorce, it’s complicated, but the following basics apply:

Your military spouse can send the appropriate form to the appropriate retired pay center within one year of your divorce to ensure that your benefits will be implemented.
A more direct and safer route is for you to request that the court make a “deemed election” that specifically requires your former spouse to provide SBP coverage and that automatically sends a copy of the divorce order and all relevant forms to the appropriate retired pay center.
The appropriate retired pay center must receive the deemed election within one year of the order that grants the SBP coverage (which will be the same as your divorce date if your decree grants coverage).
An SBP can only have one beneficiary and cannot be divided between a current and former spouse (for example).
If you remarry before turning 55, your SPB benefits will be suspended, but they can be reinstated if your second marriage ends with annulment, divorce, or death.

Military Pensions

Military pensions tend to play a critical role in military divorces, and the matter is so complicated and so critical to your financial rights that you are well-advised to work closely with an accomplished divorce attorney throughout the process. There are a lot of myths floating around out there about how military pensions are divided in divorce, and one of the most common is that you must be married for at least ten years before you are entitled to a share of your spouse’s military pension. In reality, the divorce court handling your case has vast discretion in the matter and will divide all your marital assets in a manner that it deems fair.

The 10-10 Rule

The myth about the 10-year requirement likely stems from what is commonly known as the 10-10 rule, which is a policy that implements automatic garnishment of the military member’s pension for the purposes of divorce. Under this rule, the retired pay center automatically divides the military pension and sends the correct portions directly to the appropriate spouses. To qualify for the 10-10 rule, however, the following must apply:

You were married for at least ten years.
At least ten years of your marriage coincides with your spouse’s active duty (or with what is known as creditable service in the guards or reserves).

If you do not meet these criteria, the court will still divide your spouse’s pension, but your ex will be responsible for making monthly payments to you directly. Again, if you are nearing the threshold of the 10-10 rule during the course of your divorce, holding off on finalization is likely to be in your best interest.

Factors that Affect the Division of a Military Pension

There are a variety of important factors that will come into play in the court’s determination of how your divorcing spouse’s military pension will be divided between the two of you, which makes it important to keep all the following in mind:

If your spouse’s service exceeds the length of your marriage prior to divorce, that additional portion of the pension is unlikely to be marital property.
If your spouse’s service extends beyond your divorce, that too will likely affect the portion of the pension that is considered marital property.
The cost-of-living adjustment (COLA) that applies to your divorcing spouse’s pension can be considerable, and it should not be overlooked in the division of your marital property. In other words, if you are awarded a fixed amount based on the current value of the pension, COLA will not apply.
It is important to understand the difference between gross retired pay and disposable retired pay and to carefully address the distinction in the language of your divorce decree. A division of your ex’s gross retired pay will likely be higher.

Don’t Wait to Consult with an Experienced Yakima Divorce Attorney

If you are facing a military divorce, the trusted divorce attorneys at Dobbs & Young in Yakima, Washington, have a wealth of experience successfully guiding claims like yours toward favorable resolutions that support our clients’ financial rights – along with their rights as parents. We’re here for you, too, so please don’t hesitate to contact or call us at 509-577-9177 for more information today.