Does The Va Reduce A Veterans Compensation After Divorce
VA disability benefits do not count as an asset during divorce proceedings under federal law. What that means for veterans and former spouses is that a divorce lawyer or family court judge cannot automatically divide the disability income between the former husband and wife.
However, both parties should understand that laws regarding the division of VA disability income can vary by state. Attorneys representing each party should determine how state law impacts the division of all assets in the divorce and provide that information to their clients.
A few situations exist when either the federal or state government can garnish a portion of VA disability benefits. The most common reason for a garnishment is when the veteran falls behind or fails to make any payments towards child support or alimony. The amount the VA can legally withhold from disability payments and redistribute to another party ranges from 20 to 50 percent according to the veterans number of legal dependents.
The reason the VA allows garnishments from disability pay is that its mission is to support both veterans and their families. Federal or state governments cannot garnish VA disability payments for past due taxes, nor can creditors request a garnishment of the disability compensation to satisfy past due accounts.
How Does Divorce Affect Your Tricare Benefits
If you divorce a spouse who is in the military, your ex , and all of their biological or adopted children remain eligible for TRICARE up until they reach a certain age, join active-duty military themselves, or get married.
If you had children from a previous relationship when you entered the marriage, and your former military spouse didnt adopt the children, then these children will no longer be able to access TRICARE benefits once the divorce is final.
However, you might still be able to access these health care benefits for yourself, depending on the length of your marriage, the amount of time your ex served in the military, and how long those two periods overlapped.
For example, under the 20/20/20 rule, if you and your former spouse were married for at least 20 years, they served in the military for at least 20 years, and at least 20 of these years overlapped, then you get to keep your no-cost TRICARE benefits as long as you remain eligible.
Additionally, if you were married for at least 20 years, your former spouse served in the military for at least 20 years, and at least 15 of these years overlapped, then youre eligible for full TRICARE coverage for one year after the divorce under the 20/20/15 rule.
Even if you and your ex were married for a shorter amount of time or you dont meet the other eligibility requirements for no-cost TRICARE coverage, you might still be eligible to purchase temporary coverage through the program.
/10 Rule For Divorced Military Spouses
Now is a great place to note that if you are going through, or considering a divorce, its crucial that you understand the Uniformed Services Former Spouses Protection Act .
This federal law enacted in September 1982, recognizes the rights of a court to administer retirement pay to a former partner.
The USFSPA allows for a method of enforcing:
- Payments through the Department of Defense if a court awards a portion of the military members retirement pay to an ex-spouse.
- Court-ordered child support or
- Court-ordered alimony
Whats this have to do with the 10/10 rule?
The 10/10 rule comes into play by stating that the former spouse can receive a court-ordered portion of military pay from the Defense Finance and Accounting Service if:
The 10/10 rule can be confusing to understand. It does not delegate whether a former military spouse is eligible to receive a retirement check, only who sends it.
For more information on the 10/10 rule or how/when courts decide dividing a military members pension is necessary, click here.
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Determine Disposable Retired Pay
If you’re divorcing a service member, you’ll probably want to know how much retired pay you’ll receive. You’ll need to figure out the total “disposable retired pay.” This is the amount remaining after the following specific items are deducted from the pension:
- amounts for debts owed to the United States, such as advanced pay
- amounts forfeited by/fines assessed against the service member such as those resulting from a court martial in which the member is disciplined for misconduct
- amounts waived by the service member to receive an enhanced civil service retirement benefit
- amounts waived by the service member in exchange for the receipt of disability pay, and
- amounts deducted to fund the cost of a survivor benefit plan.
Take careful note of the service member’s ability to exchange retirement for disability pay. Before service members can receive tax-free disability pay, they must agree to give-up a similar amount of retirement pay. Disability pay cannot be divided as part of a divorce. So, when a service member gives up retirement pay in exchange for disability pay, the amount of retirement pay both spouses will receive is reduced.
If the service member gives up retirement pay for disability pay after the divorce, the ex-spouse may be in for a big surprise when he or she finds out how much the retirement pay has been reduced. If this has happened in your case, you should contact an attorney with experience in military divorces to learn about potential remedies.
Fact Or Whacked Myths And Mistakes In Military Divorces
INTRODUCTION: As a service to our legal assistance clients, we have prepared this handout with frequently asked questions on issues involving an overview of the divorce process. It is, of course, very general in nature since no handout can answer your specific questions. We do ask, however, that you read over these explanations carefully in connection with your visit to our legal assistance attorneys so that you may have the fullest information available to help you with your family law problem. Please send comments, corrections and suggestions regarding this pamphlet to the address at the end of the last page.
In too many military divorces, a client or lawyer makes a costly mistake. Often it’s because the client is unaware of the options or the law, someone relies on rumors and myths, barracks lawyers and buddies provide well-meaning but erroneous information, the attorney is unaware of the rules for military retirement and its division, or the rules themselves are too complex, illogical and confusing. This LEGAL EAGLE will help you sort out truth from urban legends, the fact from the whacked . Since this information is necessarily brief, ask your lawyer for a further explanation if you need to learn more.
HALF THE MILITARY PENSION?
FACT #1: Unless the marriage lasts for the entire military career, you need to know about the marital share.
SURVIVOR BENEFIT PLAN BASICS
FACT #2: Ignorance of the SBP can be costly.
MISTAKES AT THE START OF THE CASE
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What Can You Tell Us About Military Survivor Benefits In Divorce
Upon the death of Service Member, the pension benefits disappear for all parties. The Survivor Benefit Plan, also referred to as SBP, provides a continuing lifetime benefit to a Spouse or Former Spouse after those pension benefits terminate, in the event Service Member pre-deceases Spouse/Former Spouse.
SBP should not be confused with SGLI, which is a different life insurance program.
The SBP plan is connected directly to the pension. Unless otherwise specified, its a 55% continuance of the military pension.
The Survivor Benefit Plan is available not only for divorcing couples but for couples who remain married as well. There is a cost associated with SBP coverage and its different for reservists and active members but generally speaking the cost is 6.5% of the retired pay base. This can be costly and many Military families chose to purchase a private life insurance policy instead or just take the gamble that service member will live a long life-making the cost of SBP not financially worth it .
When discussing SBP in the context of divorce, there are lots of different rules, traps and timelines that must be strictly followed, or SBP coverage is lost.
For example, there are two timelines to keep in mind for the application to receive SBP coverage. Service Members must apply for SBP coverage of their spouse/former spouse within one year of the date of divorce. Former Spouses must apply for SBP coverage of themselves within 1 year of the award of SBP coverage.
Do Children Keep Their Military Dependent Id After Their Parents Divorce
Many military service members have minor children or older children who meet the definition of dependent child. Dependent children continue to be eligible for a dependent ID card and for benefits and services through their military parent, even if they live with the non-military parent. So in some cases, children may have a dependent ID card even if their parent does not.
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Military Survivor Benefits For Divorced Spouse
A service member may still voluntarily name their former spouse as the beneficiary of their Survivor Benefit Plan . This former spouse must be designated with 1 year of divorce. Also, remarriage before the age of 55 will cause the beneficiary status to be terminated, unless the remarriage later ends through divorce or death.
Impact Of Legal Separation On Entitlement To Military Benefits
Note that some states, such as Colorado, offer legal separation as an alternative to a divorce. The Department of Defense generally treats a legally-separated military spouse as married for purposes of entitlement to benefits. Per the joint regulation, Identification Cards For Members Of The Uniformed Services, Their Eligible Family Members, And Other Eligible Personnel, published under AFI 36-3036, Table 8.3 on p.122, a person remains a spouse until A final divorce, dissolution, annulment, or death occurs. Exception: Do not terminate a spouse when an interlocutory divorce or legal separation occurs. Moreover, para. 3.2 defines a former spouse as one who has gone through a divorce, dissolution, or annulment – no mention of legal separation.
In other words, a legally-separated spouse keeps the ID card, and access to all benefits the same as a married spouse, except that the issues of military retirement and SBP are determined at the time the decree of legal separation is entered.
Moreover, while the legally-separated spouse will not continue to accrue retirement benefits after the decree enters, the period of legal separation does count as marriage for purposes of former spouse medical and other 20/20/20 and 20/20/15 benefits discussed below.
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Can Va Disability Pay Be Divided In A Divorce
No. The law is clear on that, and Congress has spoken. The Uniformed Services Former Spouses Protection Act states that VA disability compensation payments are not subject to property division upon divorce. The same is true to a large extent with military disability retirement payments. Payments for the latter occur when a servicemember is declared unfit for duty.
Will The Military Give Me A Lawyer
Each branch of the military has legal assistance attorneys who are located on most bases. In general, these attorneys cannot represent you in your divorce, but they can be helpful. They can also:
- write letters for you
- answer questions, including those of your private lawyer, if you have one
The spouse of a service member can also seek the help of a military legal assistance attorney at any base and from any branch of the service. For example, the wife of a soldier can get help from a Marine Corps legal assistance attorney, and the husband of a sailor can get help at a Coast Guard legal assistance office.
Employing a civilian lawyer is the best course of action in most cases. If you are low income, you might qualify for legal help from a non-military legal aid organization. To find legal help closest to you, follow the steps outlined here. Then search for “divorce.”
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Is My Ex Wife Entitled To Half My Army Pension
There is a common misconception that an ex-spouse will be automatically entitled to half of your pension. This is not necessarily the case. However, if you were with your spouse for most of your military career then, if a pension sharing order was given, they may be entitled to a share of your pension.
In What State Should You File For Divorce
The law typically allows for the filing of a divorce in the state where either spouse has a legal residence. This means that the person starting the divorce usually files in the state where they live, if they’ve lived there for at least 6 months.
Before choosing where to start the divorce, its important to know how that state handles the division of military pensions. The federal law governing the division of military pensions is the Uniformed Services Former Spouses Protection Act .
This federal law says that the state of legal residence of the military member always has the power to divide the military pension in a divorce. So if you file for divorce in a state that is not the military member’s state of legal residence, then the court may not have the authority to divide the pension. Also, some states have other laws that can affect what happens to a military pension. Both of these topics are complicated and require advice from an attorney to avoid traps and problems.
So, before filing a divorce in any state, you need to know how that state might handle your divorce and the division of the military pension.
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Military Retirement & Divorce: Death & Survivor Benefits
SURVIVORS BENEFIT PLAN
One of the most often misunderstood aspects of military divorce is what survivor benefits are available to a former spouse under military retirement. In the broadest terms, without a Survivors Benefit Plan in place that provides for a survivorship interest that is payable to the former spouse upon the servicemembers death, a former spouses military retirement payments will stop at the death of the servicemember. You can read the statutes about the Survivors Benefit Plan at 10 USC §§1447-1455.
The maximum amount of the standard SBP annuity is 55% of the members base retired pay and will be adjusted for cost-of-living increases. The SBP program applies automatically to a member who is married or has at least one dependent child at the time he/she becomes eligible for retired pay. A member can elect not to participate in the SBP however, the members spouse must provide written consent if the member chooses not to participate in the SBP, or chooses to provide an annuity at anything less than the maximum level, or chooses to provide an annuity for a dependent child but not for the spouse.
DISABILITY & DEATH
SERVICEMEMBERS DEATH BEFORE RETIREMENT
DIVORCED MEMBERS DEATH AFTER RETIREMENT TIMING ISSUES & REQUIREMENTS
DEATH OF NON-SERVICEMEMBER SPOUSE
How Will My Military Pension Be Divided
The division of your military pension during a divorce can vary significantly based on how property is divided overall. While some states only look to disposable retired pay the amount left after deductions for things like disability California law requires that the total value of the pension be subject to division.
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How Much Is Military Survivor Benefits
The next table shows what can happen after retirement when inflation is 4 percent per year.
Retired pay is increased annually to keep pace with inflation.
Survivor payments are generally increased at the same time, by the same percentage….Spouse Coverage.Base AmountSBP CostsSBP Benefits 55% of Base Amount$2,500.00$162.50$1,375.005 more rows.
Do You Have Further Benefits Questions Contact Owenby Law Pa For The Answers
If you have more questions about former military spouse benefits or need more information about military divorce or on one of the topics mentioned above, do not hesitate to contact our Jacksonville military divorce lawyers at 770-3141. With more than 125 years of combined experience and thousands of successful cases, we are able to help you better understand this specific and unique area of the law.
Contact us today for your free initial consultation.
Great assistance from Owenby Law
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Former Spouses Are Not Entitled To A Share Of Their Exs Military Pension If The Marriage Lasted Less Than 10 Years
Another common myth about military pensions and divorce is that a former spouse is not entitled to a military members pension if they were married less than ten years however, this is not the case. As we previously mentioned, the amount of a service members pension a former spouse is entitled to depends on the number of years served by the military spouse while the couple was married. However, there is no minimum threshold to this rule, and it is possible that a spouse may be entitled to a portion of a military members pension even if the marriage lasted as little as a year.
However, there is a distinction in how a former spouse receives pension payments depending on how long they were married. If a court order divides military retirement pay as property, these payments are only made to the former spouse by the military pay center directly if a couple was married for at least 10 years during which the member spouse performed at least 10 years creditable military service. If the marriage overlapped service by less than ten years, the right to a portion of their exs pension still exists, but they would obtain payments directly from the retired service member rather than from the military pay center.