Divorce in the Trenches: Health Insurance & Alimony

Part 3 of 3: Issues of health insurance coverage and alimony in a military divorce.

Military medical insurance, known as TriCare, is available to military members and their dependents. The standard TriCare coverage for active duty military members can be upgraded to TriCare Prime for $260.00 per year for an individual and $520.00 per year per family. There are also several TriCare options for retirees.

The 20/20/20 rule is used to determine whether a former spouse is eligible to continue to receive TriCare following a divorce. Like the 10/10/10 rule, for the 20/20/20 rule to be satisfied the parties must have been married for 20 or more years, and 20 years of the marriage must have overlapped 20 years of creditable service. If the rule is satisfied, a former spouse is eligible to continue to receive TriCare as long as the former spouse does not remarry and has no coverage under an employer-sponsored health plan. If a former spouse meets the first two requirements of the 20/20/20 rule, but only has 15 years of active duty service that overlapped the marriage, then the former spouse is eligible to continue coverage under TriCare for one year. The coverage under the 20/20/15 rule does end if the former spouse remarries or has coverage pursuant to an employer-sponsored health plan.

Following the divorce, the former spouse eligible to retain TriCare coverage will need to enroll in the Defense Enrollment Eligibility Reporting System (DEERS) under his or her own social security number – having been enrolled under the military member’s social security number during the marriage.

(To learn more, see Post-Divorce Health Care When One Spouse Is in the Military and Military Medical Benefits after Divorce).

Health Insurance – What About Cobra?

Similarly to the right to extend benefits under a group health plan pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA), former military spouses who don’t meet the 20/20/20 rule, or after a year of coverage under the 20/20/15 rule, can continue coverage through the Continued Health Care Benefit Program (CHCBP). This coverage, at $1,065.00 per quarter for individuals, is more expensive then TriCare under the 20/20/20 and 20/20/15 rules, but can be an affordable option when continued coverage is needed. Generally, this coverage continues for 36 months, but this may be extended for certain former spouses who are receiving either a portion of the service member’s retirement or an annuity based on the service member’s retirement, or who are otherwise entitled by order, agreed or otherwise, to such retirement or annuity.

As with all things military, there is a form to be filed to continue coverage under the CHCBP. The former spouse must submit a completed a DD Form 2837, entitled “Continued Health Care Benefit Program,” along with the documents outlined in this form, within 60 days of when eligibility for coverage under the military health system ends (typically this is going to be the date the divorce is final).

Alimony and VA Benefits

The New Hampshire Supreme Court issued an order on May 11, 2012, in Brownell v. Brownell, which addressed the issue of veterans’ disability benefits in awarding, and enforcing an award of, alimony. The petitioner, Ronald Brownell, argued that the trial court erred in considering his federal veterans’ disability benefits as income for alimony purposes. In this case, the petitioner received approximately $2,578 in monthly federal veterans’ disability benefits as a result of suffering from service-connected post-traumatic stress disorder.

In evaluating alimony, the Court looked at the criteria of RSA 458:19, including subsection IV(c) which specifies that, in determining the amounts and source of income, “[t]he court may consider veterans’ disability benefits collected by either or both parties to the extent permitted by federal law.” The question then was whether 38 U.S.C. § 5301(a)(1) precluded the consideration of veterans’ benefits as income for alimony purposes. The Court ultimately found that veterans’ benefits may be considered as income in awarding spousal support, looking at other jurisdictions that reached the same result and at the United States Supreme Court case of Rose v. Rose. In the Rose case, the question before the Court was whether a veteran could be held in contempt for failing to pay child support when his veterans’ benefits provided the only real means of such payment. The Rose Court answered this question by holding that federal law “does not extend to protect a veteran’s disability benefits from seizure where the veteran invokes that provision to avoid an otherwise valid order of child support.” In Brownell, the New Hampshire Supreme Court adopted the findings of other courts that “have used ‘the logic of Rose’ to hold that ‘a state court is clearly free to consider post-dissolution disability income and order a disabled veteran to pay spousal support even where disability benefits will be used to make such payments.’” Thus, the Court found compelling the holdings by other jurisdictions that “the anti-attachment provisions of section 5301(a)(1) do not shield a veteran’s benefits from being considered in an alimony or maintenance proceeding because a spouse seeking maintenance is not a ‘creditor’ under the statute but is instead seeking family support.”

The result of Brownell is that it is now clear that, in New Hampshire, a former service member can no longer attempt to claim that his or her veterans’ disability benefits cannot be considered in setting alimony (as well as child support) or in seeking to compel the payment thereof.

Conclusion

In writing this article it often felt as though, for every statement made, there are a multitude of additional issues that should be considered. I have not even touched here on the Service members Civil Relief Act, which must be reviewed and complied with when one of the parties is entitled to the Act’s protection; nor the newly passed HB 1419, codified as RSA 458-E, which was effective July 13, 2012, and sets out certain rights and procedures pertaining to military members in family law matters. Moreover, once all the legal hurdles are addressed by counsel, some of the simplest tasks, like enrolling in the DEERS system, can be daunting to a military spouse who has not before acted independently in the military realm. Often a local base has services that can be used for guidance; but, the former spouse is often unaware or unfamiliar with these resources. When there is any doubt on how to proceed, consulting an attorney experienced in dealing with military issues and who is able help identify the various issues and their implications can often save all the parties a great deal of time, money, and frustration arising from unintended future consequences.

About the Author

Anna Zimmerman practices with Bianco Professional Association in Concord, New Hampshire where her practice focuses on personal injury, general civil litigation, and family law.

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