Military faq

Question: My spouse earned twenty years of active duty service to qualify for his miltary retirement but only five years where during our marriage. He told me that I’m not entitled to a share of his military retirement if we divorce. Is this correct?  

Answer: Probably not. You are generally entitled to 50% of the portion of the retirement that was earned during the marriage. This is often a complicated calculation and determination and needs to be analyzed in detail with a knowledgeable and experienced family law attorney. 

Question: My spouse told me under the rules of the military because we weren’t married for ten years of active duty service, I am not entitled to any of the military retirement. Is this true? 

Answer: No. This is not true. Military service members and their spouses often misunderstand and misinterpret the 10/10/10 rule. This rule says that the Defense Finance and Accounting Service (DFAS) will only make direct payment of a spouse’s entitled share of the military retirement if you have been married to the servicemember for at least ten years of marriage, during which the servicemember provided active duty service. However, this only provides for direct payment from DFAS, it does not consider your entitlement, as a spouse, to receive the funds. If you don’t meet the criteria for the 10/10/10 rule, the military service member may need to provide the spouse’s entitled share of the military retirement through a check or other form of payment each month. 

Question: Does military service affect child custody?

Answer: It depends. Certainly, military service does not prevent being awarded primary/residential custody or shared custody of children, but often unique issues and considerations are faced by servicemember families that must be carefully considered and planned for. If you and your spouse cannot come to an agreed parenting plan in the best interests of your children, the judge presiding over your case will make a custody determination in accordance with the state-determined child custody factors. 

Question: If my servicemember spouse elects to receive military disability pay benefits after we divorce, will that affect or change the amount of retired pay that the former spouse will receive?

Answer: Generally, yes. If your former spouse elects to receive disability benefits, he or she is generally required to make a dollar-for-dollar waiver of retired pay in favor of the disability pay. Typically disability pay is not divisible in a divorce.  

Question: Will I receive a cost-of-living adjustment (COLA) on my share of the servicemember’s retired pay when it is received? 

Answer: That depends on the wording of your military retired pay division order. If you request and negotiate for cost of living increases/adjustments, this can be awarded on the other hand, if you and your spouse agree that you will receive a fixed dollar amount, it likely will not be adjusted on an annual basis for cost of living considerations. As years go by, the loss of cost of living adjustments can become significant.  

Question: My spouse served in the military for 25 years and we had wonderful medical/health insurance through Tri-Care. We are in the processing of divorcing and I have significant health issues and cannot afford private medical insurance. What can I do?

Answer: If you have been married to a military spouse for at least twenty years during twenty years of active duty military service, you are eligible to remain on Tri-Care after a divorce. This is known as the 20/20/20 rule. 

Question: How does child custody work when a military servicemember is deployed?

Answer: the best thing that you can do is create a child care plan prior to deployment. Work with a knowledgeable family law attorney to figure out the best plan for your children, as well as you and the other parent of your children. 

Generally, if the servicemember parent is awarded sole custody of the child, he or she may be eligible for a hardship exception to deployment. On the other hand, when parents share joint custody and one parent is deployed, generally, the non-deploying parent will have the opportunity to care for the children during the other parent’s deployment. 

Question: If my former spouse/former servicemember were to pass away before I do, will I still receive my share of my former spouse’s retired pay?

Answer: It depends on whether the servicemember spouse and/or you elected a survivor benefit plan in which you were named as the beneficiary (or if this was ordered through an appropriate military pension division order). This is an example of why having a knowledgeable and skilled family law attorney is crucial to your interests being protected, from even unexpected events, in the future. 

Question: Does a 100% VA disability rating affect the ability to obtain child support?

Answer: All disability payments received by a servicemember or former servicemember are considered as income for child support calculation purposes. While a VA disability rating does not typically mean that a retired veteran is unable to work, a 100% rating and total disability determination may result in the court determining that the veteran is not expected or required to work and thus, no additional income is imputed to him or her. 

Question: Is a divorced spouse entitled to VA benefits received by a former military servicemember? 

Answer: No. Under federal law, VA disability benefits received are not marital property which a state court is able to divide in a divorce decree as marital property. VA payments can be considered income and utilized in a calculation/determination of maintenance and child support, but not for the purpose of division as marital property. 

Question: If I am a military servicemember and my former spouse is awarded the marital share (half) of my military retired pay in our divorce, does that mean that if I qualify for disability pay, I have to reimburse my former spouse for their lost share of my retired pay? I am not eligible for Special Combat-Related Compensation (SCRC) or Concurrent Retirement and Disability Pay (CRDP)?

Answer: Generally not. It depends on the details of your divorce decree and property settlement. An experienced military divorce attorney can help you prepare the documents in a way that protects your interests. Your former spouse should only be entitled to their share of your net or disposable retired pay (which excludes disability compensation) at the time of retirement. 

Question: DFAS has informed us that the cost of the survivor benefits for my former spouse is around $150 per month. Who has to pay this expense? 

Answer: Unless your agreement indicates otherwise, DFAS will typically take the cost out of the retired pay which means it is shared I proportion to benefits received/reduced. However, many judges will order/require that if the former spouse wants the benefit/protection of the survivor benefit plan, he or she must solely pay the cost of this benefit.

Question: Is my former spouse entitled to my earned Special Combat-Related Compensation (SCRC)?

Answer: probably not. Similar to disability compensation, SCRC benefits are generally not divided at the time of a divorce, but remain with the servicemember who earned them through their military service. 

Question: I have received an 80% disability rating through the military. I support myself through my military retired pay and the VA disability benefits I receive. Will I be required to provide some portion of these entitlements as spousal support to my former spouse if we divorce?

Answer: like a lot of things in the law, it depends. While a former spouse would be entitled to half of the military disposable retired pay that accrued during the marriage, generally, the court will be reluctant to pay spousal support with disability payments/funds. If you have other sources of income, including income producing property, the court may still consider an award of spousal support. 

Question: I am a servicemember. I was awarded custody of the children, but if I get deployed, the children will stay with my former spouse. If that happens, will my former spouse be able to keep custody of the children after I return from deployment?

Answer: while custody is always determined based on the best interests of the children, both Kansas and Missouri have laws that protect military servicemembers from being punished with the loss of custody due to their service to our country.  

Question: Does my VA Disability Payment Amount change if I get divorced?

Answer: Yes. The disability payment amount calculated by the military is increased if the military servicemember has a souse, for each child, and even for a qualifying dependent parent. Therefore, upon divorce, when the military member no longer has a dependent spouse, the payments decrease by about $50 per month for a 30% rating and up to about a $200 per month reduction for an unmarried 100% disabled veteran. 

As you can see there are many complicated and complex issues to address if you are a military servicemember or a spouse going through a divorce or other family law matter. Put our knowledge and experience to work for you. Call Pingel Family Law today at (816) 208-8130 to allow us to help you!