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What Is a Military Spouse Entitled to in a Divorce?

In addition to the rights that every spouse has in a divorce, military spouses have additional rights that apply to specific benefits provided by the government. These rights affect health care, pensions, support, and other privileges.

Spousal Rights in Colorado Divorces

Any person seeking a divorce in Colorado is entitled to seek:

  • Child support for children under the age of 19
  • Equitable distribution of all marital assets and debts
  • Parental responsibility (custody) of any minor children of the marriage
  • Spousal support (if applicable)
  • Attorney fees (if applicable)

These basic rights apply to military and non-military spouses and are not influenced or changed by a spouse’s career in the military.

Special Rights of Military Spouses

In addition to those basic rights in a divorce, military spouses have rights to specific military benefits when they divorce, which fall into four basic categories.

  1. Health Care

As a military spouse, maintaining your Tricare health benefits may be of utmost importance to you. Whether or not you are entitled to continued access to Tricare depends on something called the 20/20/20 Rule.

The rule is from the Uniformed Services Former Spouse Act and states that you qualify if:

  1. You were married for at least 20 years,
  2. Your servicemember spouse has at least 20 years of service that is creditable for retired pay, and
  3. At least 20 years of your marriage was during the years of creditable service

If all three requirements are met, you are entitled to lifetime Tricare medical benefits after your divorce. If the first two points are met, but the third is not, and only 15 years of the marriage were during creditable service (20/20/15 Rule), you are only entitled to health care for one year after the divorce.

Note that this is not a negotiable point in the divorce case. It’s directly tied to the federal law and the military spouse either qualifies or not.

If you lose your health care in the divorce, The DOD Continued Health Care Benefit Program gives you the option of paying for Tricare for 36 months after the divorce.

  1. Base ID and PX Privileges

Maintaining your base ID card and access to commissaries and PX exchanges are important benefits you may want to maintain after your divorce. The 20/20/20 Rule also determines these benefits. If you meet the three prongs of this rule, you can maintain these benefits. The 20/20/15 Rule does not apply to base privileges.

  1. Obligation to Support

Each military branch has regulations that require servicemembers to financially support their families, even if there is not a current order of support. This is true because service members receive a housing allowance (BAH) and a subsistence allowance (BAS).  The command has the authority to ensure that the servicemember pays support per the regulations, even in the absence of a court order.

This rule is most useful in situations where a divorce has been filed but prior to any court orders. During this in-between time period, your attorney can contact your spouse’s command and ensure that support is paid, even before the court order is processed.

  1. Pension

In most long term military marriages, the servicemember’s pension (known as retired pay) makes up a significant portion of the marital assets which are subject to division in the divorce. There is only a pension to divide after the Service Member has 20 years or more of military service.  An active duty service member can commence the pension upon retirement (regardless of age).  A reserve duty service member begins receipt of the pension benefit at age 60.

To determine whether you are entitled to a portion of your spouse’s pension depends on the state and federal law.  Under the Colorado law, a military spouse is awarded an equitable share (usually half) of the service member’s retired pay multiplied by a marital fraction (the length of marriage during service divided by the length of service).  For divorces after January 1, 2017, the federal law requires the available benefit to be frozen as of the date of the divorce.

Under, the 10/10 Rule, DFAS will only direct pay an award of retired pay to the former spouse if:

  1. Your marriage was at least 10 years in length, and
  2. Your spouse completed at least 10 years of creditable service during the marriage, before the divorce

Failure to meet the 10/0 Rule does not mean the former spouse receives nothing.  It simply means that the payments will not come from DFAS, but will need to come from the Service Member.  This triggers a host of additional issues to carefully consider and discuss with your attorney.

Military spouses have important rights that must be considered during divorce. If you are married to a military spouse and considering divorce, it is important that you work with an attorney experienced in military divorce law. The skilled attorneys at Burnham Law are experienced in this area and are ready to take your case.

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Heidi
Whitaker

Partner - Domestic Relations

Fort Collins

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