Military Divorce

Cases involving a service member present a unique array of issues which must be handled correctly to reach a fair resolution of the case. Here, we discuss a few of the things to take into consideration when handling a military divorce.

Some Acronyms:

SM = Service Member
LES = Leave & Earning Statement
BAH = Basic Allowance for Housing
BAS = Basic Allowance for Subsistence
BAH-Diff = Allowance for payment of Child Support
CHCPBP = Continued Health Care Benefit Program

Income

The Leave & Earning Statement (LES) is the key to determining a SM's income. The federal tax return is not sufficient because the SM most likely receives non-taxable entitlements that don't show up on the return, such as:

  • BAH (Housing): A service member receives BAH to cover living expenses either on or off base. If the SM moves into the barracks then BAH will go away.
  • BAS (Subsistence): A service member receives BAS to cover food expenses.
  • Fly Pay: Service members with aerial training receive additional pay.
  • Other: There are many other additions, too many to list here.
The key is to carefully survey the LES statement to determine what the SM receives each month.

Unit Commander

The unit commander or other superior plays an important role in the process, because he/she has an independent duty imposed by the military to verify that the SM is meeting the family support obligations (and moving forward with the divorce as the case may be) in compliance with military regulations.

In other words, whereas most civilians are accountable only to the divorce court, a SM is independently accountable to the chain of command. This is a valuable asset for the SM's spouse because she (or he) can appeal to the unit commander for assistance in ensuring support is paid.

Temporary Support

Military regulations require that the SM pays family support beginning the day that the parties physically separate. Payment is due on the first day of the month for the previous month (this is different from divorce court, which usually requires payment for the upcoming month).

Initially, the support payment is based on the current Non-Locality BAH With Dependents chart. Payment for the first month should be "pro rata", meaning that if the parties separated on the 20th day of the month, the payment should be 1/3 of the assigned rate (because they were separated for 10 out of 30 days.)

Military Separation Agreements, etc.

Note, however, that an agreement signed by the parties trumps the Non-Locality BAH chart.

What seems to usually happen is that the parties are instructed to go to the local legal assistance office on base and have a separation agreement drawn up with a support amount that is presumably better tailored to their situation than the BAH chart.

The agreement will be notarized with a general notarization language, which is fine for the military but will not pass muster with the divorce court (at least, not in New York.)

Thus, the way that I think about these military separation agreements is that although they might purport to be valid until the youngest child is 18, etc., they really just serve as a temporary agreement until a final agreement is negotiated as part of the divorce.

BAH-Diff (BAH for child support)

After separation, the SM may move into single housing (barracks). However, he is entitled to collect an amount called BAH-Diff for the purpose of paying child support. This is basically the difference between BAH without dependents and BAH with dependents. The SM must make sure he arranges to receive this entitlement. This can go part way (rarely would it go all the way) toward paying the monthly support and it is received tax free.

Jurisdiction

The New York court must have jurisdiction like in any other case under DRL 230 (one spouse's residence/domicile for at least two years, or one year if other conditions are met).

**Note that if military retirement benefits are an issue to insure jurisdiction you must file the divorce in a state where the military spouse is domiciled, or such other state that that both parties agree upon.

The Servicemembers Civil Relief Act:

You can't go forward with a divorce against an active duty SM unless he/she consents, due to a federal law called the Service Members Civil Relief Act (SCRA).

This law gives SMs special treatment in court proceedings at home. The purpose is so that they're not distracted from their duties. The law is intended to "provide for the temporary suspension of judicial and administrative proceedings and transactions that might adversely affect the civil rights of SMs and their families during their military service. (50 U.S.C. Appendix §502(2).

The SCRA applies to all divorce-related proceedings, including requests for custody, support or property division. The SCRA could prevent eviction from rental housing, limits interest on credit obligations (such as loans and credit cards) to 6%, and some other types of tax protection as well.

Medical Benefits

Military healthcare is called TRICARE. To qualify each person must have complete and correct information with the Defense Enrollment Eligibility Reporting system (DEERS). There are different types of TRICARE plans, but basic TRICARE coverage is free to SM and there family with no co-payments or prescription costs. After a divorce children continue to qualify until the age requirement.

A spouse only qualifies if they meet some pretty stringent requirements.

  • If you don’t quality for health insurance through their own employment.
  • They haven’t married.
  • If they meet the 20/20 rule, meaning that the SM has at least 20 years of military service, and there was at least a 20 year overlap between those two time periods. (Lesser benefits are available to spouses who meet a 20/15 rule, meaning the overlap was at least 15 years). COBRA does not apply to spouses in military service. Instead, there is something call the Continued Health Care Benefit Program (CHCPBP), which offers transitional insurance benefits to help the civilian spouse moved from TRICARE to coverage through the civilian employment.
  • The civilian spouse has 60 days after they lose military benefits to apply for CHCBP coverage, which lasts for up to 36 months.