In Texas, it’s not uncommon for military issues to arise in the context of divorce and other family law matters. With a basic understanding of military and veteran benefits, attorneys can better navigate the issues and impacts of military service in such cases. This guide provides attorneys with a glossary of terms, common scenarios to look out for in family law cases involving military income and property division, and how other states, such as Virginia, North and South Carolina, and Florida view military divorces as well.
Glossary
Defense Finance and Accounting Services (DFAS): DFAS handles payments to active duty, reserve, and retired military personnel. DFAS also handles payments to recipients of child support and spousal support for active duty and reserve personnel.
Military Retired Pay: A servicemember who serves for a minimum of 20 years in active duty is entitled to military retired pay. The calculation formula for the amount of retirement pay is based on the date the servicemember entered the military.
Reserve (Non-Regular) Retirement: Reservists qualify for retirement pay when they obtain 20 years of “qualifying” service, and will receive a letter, often called a “20 Year Letter” notifying them of the qualification. Usually, the retired reservist will receive pay beginning at age 60.
Uniformed Services Former Spouses’ Protection Act (USFSPA): This federal law governs when and how a former spouse receives a portion of a retiree’s Military Retired Pay.
Basic Allowance for Housing (BAH): A servicemember assigned to a permanent duty station within the United States and is not living in government housing receives BAH depending on the location of the duty station and whether the servicemember has dependents.
Basic Allowance for Subsistence (BAS): All servicemembers receive BAS, and the amount received depends on whether the servicemember is enlisted or an officer.
Disability Benefits are financial compensation a veteran receives for disabilities incurred or aggravated by service in the military. In other words, it is service-connected disability compensation. When a veteran submits a claim, the Department of Veterans Affairs (VA) evaluates the disability and awards a percentage, which determines the amount the veteran receives monthly.
Pension Benefits are also handled by the VA and are an entitlement a veteran may receive if their medical expenses and income satisfy a means-based assessment. Pension benefits are non-service-connected compensation, meaning it is an entitlement not awarded based on a veteran’s disability.
Servicemember’s Civil Relief Act (SCRA): The SCRA is a federal law that applies to active-duty personnel who are defendants or respondents in a civil suit to protect against default judgments, as well as afford protections in rental agreements and insurance policies.
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Common Scenarios in Family Law
Child Support and Spousal Support
The Texas Family Code permits service-connected disability awards to be part of the income calculation for child support. You can find the amount of the award from the veteran’s VA Benefit Summary Letter. Keep in mind VA disability is not taxed. Thus, you should add the obligor’s monthly VA disability benefit as additional non-taxed income.
Unlike child support, the Texas Family Code does not permit VA service-connected disability payments to be considered in calculating an obligor’s gross income for spousal support.
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Servicemember’s Income
Review the pay tables provided by DFAS to determine a servicemember’s monthly income if you do not have a copy of their Leave and Earnings Statement (paystub). You will need to know their rank and length of service to determine their pay and will need to know the zip code of their assigned duty station to determine BAH.
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Division of Military Retirement
If a retiree served 20 years or more, then he or she is entitled to military retired pay (or reserve retirement). The maximum a former spouse can receive is 50% of the retiree’s pay, and per the “10/10 Rule,” if the marriage overlapped with at least 10 years of military service, then the former spouse can receive direct payment of retirement benefits through DFAS. If the former spouse does not qualify for direct payment through DFAS, then the payments are made directly from the retiree to the former spouse.
Other Benefits
Former spouses may keep some benefits associated with the military depending on the length of service and the length of marriage. Per the “20/20/20 Rule,” if a member served for 20 years, the parties were married for at least 20 years, and the marriage overlapped 20 years of service, then the former spouse is eligible for continued coverage under TRICARE as their own sponsor, as well as continued commissary (grocery store) and Exchange/AAFES (retail shopping) privileges if he or she does not remarry. If only 15 years of marriage overlapped years of service, the former spouse is only eligible for TRICARE coverage for one year from the date the divorce is finalized. This is referred to as the “20/20/15 Rule”.
How Does Military Divorce Work in Other States?
Military divorce laws represent a unique crossroads of state, federal, civilian, and military law. Consequently, the laws guiding each divorce can vary somewhat depending on which state has legal jurisdiction.
Military spouses have options when it comes to where they will file for divorce and which state’s laws will guide their legal process. Servicemembers can choose to file for divorce in one of several places:
- Where they are stationed – Servicemembers can file for divorce in the state where they are currently stationed, even if this is not their state of legal residence.
- Where they are a legal resident – Servicemembers often retain a home state for tax and voting purposes. They can choose to file for divorce in this state, even though they are stationed elsewhere.
- Where the non-military spouse lives – A non-military spouse can file for divorce in their own state of residence.
However, military divorces are also subject to federal laws and regulations beyond those regulating civilian divorces. Specific laws, such as the Uniformed Services Former Spouses Protection Act (USFSPA) and the Servicemembers Civil Relief Act (SCRA) are designed to protect military servicemembers and non-military spouses alike, and all states must consider these when making determinations in a military divorce.
Common Military Divorce Scenarios in Virginia, North Carolina, South Carolina, or Florida
All states must follow these federal laws regarding the division of military retirement pay and the treatment of disability benefits. However, because state laws also apply in divorce actions, there may be slight nuances under individual state laws. For the most part, however, Virginia, North Carolina, South Carolina, and Florida have similar core principles regarding military benefits and how the courts address them.
Child Support and Spousal Support
In Virginia, Florida, North Carolina, and South Carolina, both parents are responsible for the financial support of their children. Child support is regulated by each state and calculated using state-specific guidelines. Both parents’ gross income is one of the primary considerations when determining child support. In a military divorce, the court will consider the military servicemember’s retirement pay and disability benefits as income for the purpose of calculating each parent’s share of child support.
Courts consider many factors when making spousal support determinations, including the financial resources of both parties. While the USFSPA prevents military disability benefits from being considered marital property in divorce cases, both military disability and military retirement pay are considered income for purposes of spousal support. In addition, all three states consider a servicemember’s Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) when calculating child and spousal support.
Division of Military Retirement Benefits
Virginia, North Carolina, South Carolina, and Florida are all equitable distribution states. Unlike community property states where divorcing couples divide marital property evenly, equitable distribution states consider many factors to ensure fairness when dividing the couple’s marital property, such as the length of the marriage, both spouses’ contributions to the marriage, and the age, health, and economic circumstances of both spouses.
Military retirement pay earned during the marriage is considered marital property, not income, in property division. Consequently, a former spouse is entitled to receive a fair portion of the servicemember’s retirement pay based on equitable distribution factors and the servicemember’s years of service during their marriage.
In addition, USFSPA allows state courts to apply the 10/10 Rule regarding military retirement benefits division. The 10/10 rule allows the former spouse to receive their portion of the servicemember’s retirement pay directly from the Defense Finance and Accounting Service providing they were married for 10 years which must overlap with 10 years of military service. If the 10/10 rule does not apply, the servicemember will be responsible for making any retirement payments directly to the spouse.
Other Benefits
Like Texas, Virginia, North Carolina, South Carolina, and Florida state courts allow former spouses to retain other benefits they had while married, depending on the length of the marriage and the years of military service. These include:
- The 20/20/20 Rule – This rule allows former military spouses to continue with lifetime TRICARE coverage and commissary privileges, provided the marriage lasted 20 years, the servicemember served 20 years, and there was a 20-year overlap of military service and marriage. These benefits remain in effect until the spouse remarries or has access to other healthcare through an employer.
- The 20/20/15 Rule – If both the marriage and service lasted 20 years but there was only a 15-year overlap, the spouse is eligible for only one year of TRICARE benefits.
- Continued Health Care Benefit Program (CHCBP) – If a former spouse does not qualify for benefits under the 20/20/20 or 20/20/15 rules, they have the right to purchase temporary coverage through CHCBP for up to 36 months after the date of the divorce.
- Commissary and exchange privileges – Former spouses who meet the 20/2020 rule can also retain the commissary and exchange privileges they had while married.
Alexandra Geczi is the owner and founding member of Alexandra Geczi PLLC. You can learn more about military benefits on the firm’s website, www.FamilyLawDFW.com.
Melone Hatley, P.C. is a full-service family law firm with offices in Virginia, North Carolina, South Carolina, and Florida. To learn more about our firm, please visit our website – www.MeloneHatley.com
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