Rights and Protections in Military Divorce

In the event of a military divorce, whether you are the service member or non-service member spouse, it is important to know the rights that you have and benefits that you may be entitled to.

Service member Protections Under the Servicemembers Civil Relief Act

Active duty service members are covered by the Servicemembers Civil Relief Act (SCRA). Two of the major areas of coverage of the SCRA include, but are not limited to: (1) protection against entry of default judgments and (2) stay of civil proceedings.

1. Protection against entry of default judgments.

The SCRA provides measures to protect an active duty service member against having a default judgment in a civil case entered against them when they have not been properly noticed in the case. (50 U.S. Code §3931.)

This includes in a divorce and/or child custody proceeding. When filing for a default judgment, the party filing for that default must attest, under penalty of perjury, to the respondent’s then existing military status or that he or she is unable to determine whether the respondent is or is not in military service. (50 U.S. Code §3931(b)(1).)

If the respondent is in military service, default judgment may not be entered against him or her until after an attorney has been appointed to represent them. (50 U.S. Code §3931(b)(2).) The SCRA provides remedies to a military member who has had a default judgment entered against them. 

2. Stay of proceedings.

The SCRA provides that where the active duty service member does not have actual notice of the civil proceedings against them, again, including child custody and/or divorce proceedings, the court must stay the proceedings for at least 90 days upon request or on its own motion upon certain findings.  (50 U.S. Code §3931(d).)

Where the military spouse does receive actual notice of the proceedings, they may also request a stay of those proceedings upon an application and certain other requirements being met. (50 U.S. Code §3932(b).) 

These are not the only protections afforded to service members by the SCRA. It is recommended to consult with an attorney familiar with the SCRA to ensure that he or she understands these protections and the proper procedures for applying for protection or relief under the SCRA.

Civilian Spouse Rights under the Uniformed Services Former Spouse Protection Act

Whether you are the military or non-military spouse, it is important to understand the benefits that civilian spouses may be entitled to under federal laws.

The Uniformed Services Former Spouse Protection Act (USFSPA) provides many of these benefits. Some such benefits may include continued health insurance coverage, Survivor Benefit Plan (SBP) election, and receipt of a portion of the service member’s retirement. Many of these benefits are directly tied to the length of the marriage, length of the service member’s service, and overlap between those two periods.

1. Continued health insurance coverage. 

A former non-military spouse may be eligible for continued health care coverage. Known as the 20/20/20 rule, a former spouse may be entitled to continued Tricare coverage if the marriage was for at least twenty years, the service member has at least twenty years of credible service, and at least twenty years of the marriage overlapped with the military spouse's time in service.

If the 20/20/20 rule is not met, there is also a 20/20/15 rule. The 20/20/15 rule may provide limited Tricare coverage to a former non-military spouse for one year after divorce if the marriage was for at least twenty years, the service member has at least twenty years of credible service, and at least fifteen years of the marriage overlapped with the military spouse's time in service.

If the former spouse does not meet either the 20/20/20 or 20/20/15 rule requirements, they may qualify to participate in the Continued Health Care Benefit Program (CHCBP), wherein they may purchase up to three years of health care coverage that is comparable to Tricare.

There are additional requirements that must be met with any of these three potential avenues for maintaining health care coverage, which is why it is important to consult with a military divorce attorney familiar with these requirements. 

2. Survivor Benefit Plan Election.  

The Survivor Benefit Plan (SBP) provides eligible beneficiaries with a monthly payment, or annuity, if the military member dies on active duty or after retirement. A court can order a service member, active or retired, to provide SBP coverage to their former spouse, or they may also voluntarily agree to provide this coverage.

There are eligibility requirements that must be met to qualify for this coverage, such as a loss of eligibility to a former spouse who remarries before age fifty-five. Additionally, there are procedural requirements around the timing of the election and whether it is a “deemed” election.

Given the complexity of these requirements surrounding eligibility and procedures, it is important to consult with an attorney.

3. Support and Retirement.  

Military pay is comprised of base pay and allowances, such as their basic housing allowance (BAH) and a basic allowance for subsistence (BAS). There are other potential sources of income that they may receive depending on such things as duty assignment and deployment status.

In California, BAS, BAH, and other income received by the service member are generally included in calculating gross income for purposes of determining spousal support or child support. If support is at issue and is ordered paid from the service member, the recipient spouse may have the service member’s wages garnished so that the support is paid directly through the Defense Finance and Accounting Service (DFAS).

The USFSPA authorizes disposable military retirement pay to be treated as community property subject to division in a divorce. If the civilian spouse is entitled to a portion of the military retirement benefits and there is an award pursuant to a divorce, they may be eligible to receive their portion of the military retirement directly from DFAS.

Known as the 10/10 rule, if at least ten years of the marriage occurred during the years of qualifying military service, the civilian former spouse may receive their portion of this military retirement pay directly from the government through DFAS.

If the 10/10 rule is not met, the civilian former spouse must receive their portion of the retirement directly from the service member.

There is a lot more to military retirement pay, such as whether California has jurisdiction to divide it and calculating how much the non-military spouse is entitled to. It is important to consult with an attorney who is knowledgeable in this area.

Unlike civilian divorces, wherein neither spouse is or was a service member, military divorces are often complex due to the interplay between Federal law, State law, and military rules and regulations. 

Our team of military divorce attorneys at Cage & Miles, LLP can work with you to navigate the complex military divorce process.  Contact our team at (858) 943-2060 today.