Considerations Involving Military Servicemembers

Family Support

Soldiers are required to manage their personal affairs in a manner that does not bring discredit upon themselves, or upon the military. The military takes seriously the duty of its members to provide family support. Soldiers are therefore required to conduct themselves in an honorable manner with regard to parental commitments and responsibilities. The military does not want personal problems to become an official matter of concern.

Military regulations governing the personal affairs of servicemembers set forth policy, and describe what actions can trigger a command’s obligation to take action against a soldier. A mere complaint to the command, or to an authorized representative of the command, that a soldier is not providing financial support to his or her family, could trigger command action. This complaint could be by telephone call, letter, fax, email or other form of communication.

Command involvement in cases of a soldier’s failure to provide financial support to family members could include the authorization of an involuntary allotment, or the ordering of a soldier to initiate a voluntary allotment. A soldier’s failure to provide financial support to family members could be a violation of regulations, and punishable under the Uniform Code of Military Justice.

Take heed. Or action.

The Filing of a Case against a Servicemember

The federal Servicemembers’ Civil Relief Act, of “SCRA,” affords protection to servicemembers on active duty whose spouses decide to file divorce suits and conduct divorce proceedings, when servicemembers are unable to defend themselves. The SCRA applies to individuals on active duty in the military, including service in the Coast Guard, activated Reserve, activated National Guard and activated Air National Guard.

The SCRA also applies to a host of other individuals on federal active duty besides regular members of the armed forces, such as inductees serving with the armed forces, Public Health Service and National Oceanic and Atmospheric Administration Officers detailed for duty with the armed forces, persons training or studying under the supervision of the U.S. preliminary to induction, and personnel on duty for training or other duty at the request of the President for or in support of an operation during a war or declared national emergency.

If your spouse is protected under the SCRA, the divorce suit you initiate may be stayed under the Act. If it is not, you may have to pay for a lawyer for your servicemember spouse, unless he or she hires his or her own lawyer, or signs a Military Waiver waiving the rights provided by the Act.

A number of states have also enacted a patchwork of statutes attempting to protect the parental rights of deployed servicemembers to the permanent custody of their children. Until a uniform law in this area is enacted, certain states will continue to have varying protections and requirements addressing the needs of deploying and returning servicemembers. You will need to see what procedures apply in your jurisdiction, if you are involved in custody proceedings.

Military Benefits

There are many ins and outs regarding spousal entitlement to military benefits. You should obtain answers to those of the below questions relevant to your, or to your spouse’s, military service.

Who handles continued healthcare benefits for a qualified former spouse? What is the Defense Eligibility Enrollment Reporting System (DEERS) Office?

Were contributions made by the servicemember to the Uniformed Services Thrift Savings Plan, or military TSP? Would the nonmember be entitled to a portion of those benefits? What sort of court order would have to be prepared to transfer any of those benefits?

Must 10 years of my marriage overlap with 10 years earned by my spouse of military service creditable for retired pay, in order for me to receive direct payment of my share of my spouse’s military retirement from the Defense Finance and Accounting Service, or “DFAS”? Am I eligible for a renewable military identification card, and for limited health benefits, if 15 years of the marriage overlapped with military service? Full medical, post exchange, commissary and theater privileges with 20 years if I remain unmarried?

What happens if disposable retired pay is waived by my spouse in order to receive disability payments – whether Concurrent Retirement and Disability Payments (CRDP) or Concurrent Disability Payments (CDP)? If DFAS will not pay me, a former spouse, any portion of Concurrent Disability Payments received by my spouse, a servicemember, will my share of the disposable retired pay be reduced? Can language be drafted for a court order, or for an Agreement, that will protect me if my spouse converts his or her retirement pay to disability pay?

If my spouse elects to receive a Career Status Bonus, will that reduce the monthly retirement benefit? Can I receive a portion of the bonus from DFAS?

If the benefits are important to me, the spouse of the military member, should I work with a professional familiar with all the ins and outs under military benefits law? Can my spouse and I mutually agree to delay the date of retirement from the military, or delay the date of our final separation, or delay the date of submission of our final divorce decree for entry by the judge, until we hit either 5, 10, 15 or 20 years of marriage overlapping with creditable years of military service earned?

If I want to receive survivor benefits, must the benefits be elected before my spouse retires? Must the election be set forth in a certified copy of a final divorce decree sent to DFAS in Kentucky within one year of entry, along with a Deemed Election Letter signed by me and the applicable DD form? If that is not done, would that election stop for good, even if I had been elected in the past? If I want to receive my share of the disposable retired pay, must certified copies of a final divorce decree and of a Qualifying Court Order be sent to DFAS in Ohio, along with the applicable DD form? Will I lose survivor benefits if I remarry before age 55?

Am I still eligible for military medical care if I, an unremarried former spouse, am also covered by an employer-sponsored health plan? Can the military health coverage be reinstated if I lose that private coverage? Are the benefits unable to be reinstated, and lost for good, if I remarry and then divorce, or if my new spouse dies? Does is make any difference if I was at least 55 years old when I remarried? Are private supplemental health insurance plans also available through the military? For how many years after the divorce can the spouse of the member remain eligible for that coverage?

Can life insurance coverage be maintained on my life, the spouse of the enlisted military member, under Servicemembers’ Group Life Insurance, (SGLI), or Veteran’s Group Life Insurance, (VGLI), for a retired member? Will this be discontinued if we divorce?

If my spouse receives survivor benefits as a result of my military service, does that reduce the amount of retired pay I will receive? If I do not want my spouse to receive those survivor benefits, can I prevent my spouse forever from being awarded survivor benefits in the future if I retire and don’t make the election? If I have already retired, and I elected for my spouse to receive the survivor benefit, I can never remove that election? If I am not yet retired, and we are not yet divorced, would my spouse be required to sign a Waiver of those rights if I do not want to elect survivor benefits for my spouse, or if I want to choose limited benefits?

If the divorce decree doesn’t mention survivor benefits, or if it does but a certified copy is not sent to DFAS within one year, is my spouse’s right to the benefit lost for good, even if I am already retired and my spouse had been previously designated? But could my estate be forced to pay the value of the benefit upon my death if DFAS doesn’t?

Can I choose deferred benefits to be received by my spouse either immediately after I, the member, die before age 60, or only to be received by my spouse after I would have reached 60 years of age if I die before I reach age 60? If I served in the Reserves, can survivor benefits be received by my spouse after I have 20 good years of service, up until I die or would have turned 60 if I die sooner? If I elect the Reserve Component Survivor Benefit Plan to cover those intervening years, will there be an actuarial reduction in the benefits paid later? Are the rules any different for the National Guard?

Do you, the servicemember, feel your spouse should receive none of your military retirement, because you were the one who put your life on the line, and earned it? Do you, the military spouse, feel you earned that pension just as much as your spouse by relocating many times, with all the attendant packing, unpacking, and searching for new doctors and dentists; by putting your career on hold, or continually starting and stopping your career with each move; by being a supportive military spouse, scared to death each time the doorbell rang at odd hours while your spouse was deployed; by trying to help your spouse readjust to civilian life after deployment; and by having possibly borne the brunt of the nonadjustment after return which contributed to the ending of the marriage?

If you don’t know which of the above questions pertain to your situation, and the answers to those questions that do pertain, you need the assistance of a military retirement benefits specialist.

(This article is excerpted from Rachel Virk's book, The Four Ways of Divorce, available at www.thefourwaysofdivorce.com).