Divorce proceedings are governed by state law; however, federal law provides guidance on how retirement pay can be divided and what benefits the former spouse may be entitled to. As a result, each divorce case is unique and there is no guarantee any benefits will be awarded by the state court. Be sure to consult an expert who can provide guidance on your case and the benefits available to you.
During a separation, the service member is still responsible for providing support for the spouse and child(ren). Each Service has policies identifying what the support amount should be if the parties involved cannot come to an agreement.
The spouse still retains a military ID card and full benefits during a separation. In most cases, the non-military spouse will lose his/her ID card (and privileges) once the divorce is final. In cases where a spouse is considered “20/20/20” or “20/20/15,” these benefits and privileges remain in tact.
After your divorce is final, if you are not a 20/20/20 or 20/20/15 former spouse, and do not quality for military medical care, you have the right to enroll in the Department of Defense Continued Health Care Benefit Program (CHCBP). Coverage under this plan is almost identical to TRICARE Standard and covers pre-existing conditions, including pregnancy. The plan must be purchased quarterly and a former spouse may retain the plan for 36 months after the loss of eligibility for military medical care.
Family Support Guidelines
During a separation, a Commander may enforce Service-specific support guidelines for a spouse or child(ren), in lieu of a court order.
Coast Guard (See Chapter 8.M of the Personnel Manual, Commandant Instruction M1000.6A)
Finding an Attorney
Your installation legal assistance office is the best place to start. A Judge Advocate General (JAG) officer can provide guidance on military benefits, offer a referral to a civilian attorney within the local area, and may be able to review a separation agreement. To avoid any conflict of interest, a legal assistance office can only offer guidance to either the service member or spouse, but not to both. Additionally, a JAG officer cannot represent a client in a family law court.
Keep in mind, divorce is governed by state law. You’ll want to find a family law attorney who understands your state specific laws, as well as federal protections.
Resources for Attorneys
What You Need to Know
The main law governing military divorce is the Uniformed Services Former Spouses' Protection Act (USFSPA or FSPA), Public Law 97-252 (Title 10 U.S. Code, Sec. 1408 etc. seq.). Effective February 1, 1983, FSPA returned to state courts the right to consider military retired pay as property upon divorce. FSPA provides a method of enforcing current child support and alimony awarded in a court order and permits a direct payment of retired pay (if awarded by the state court) for certain eligible former spouses. In certain cases, FSPA also allows some former spouses to retain commissary and exchange privileges, military health care, and designation as a Survivor Benefit Plan (SBP) beneficiary.
Former Spouse Protection Act (FSPA)
- Treats retired pay as property
- Former spouse may be awarded up to 50% of retired pay
- Direct payment by DFAS
- 20/20/20 spouses retain health care and commissary/exchange privileges
- If married less than 10 years, payment comes from service member
Uniformed Services includes all seven branches, active and reserve components, of the Army, Navy, Marine Corps, Air Force, Coast Guard, and the Commissioned Corps of the US Public Health Service and the National Oceanic and Atmospheric Administration (NOAA).