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Divorce: How are VA and Military Benefits Affected?

Divorce can disrupt many areas of your life. If you or your spouse is a disabled veteran, one issue to consider is how benefits will be impacted when your marriage ends. The Uniformed Services Former Spouses’ Protection Act governs how many types of benefits and compensation will be treated in a divorce case. 

The first step is to inventory the benefits you and your spouse are currently receiving and to determine which are VA benefits and which–if any–are retired military benefits. Then, you’ll want to check one by one to see which benefits terminate upon divorce, which if any continue, and which may be extended under specific circumstances. It’s important to have a solid understanding of these issues before you divorce, as they can impact critical areas such as your income and medical coverage.

VA Benefits v. Retired Military Benefits

VA disability benefits and military retirement benefits are treated differently when the veteran divorces. In general, VA disability benefits tend to remain solely with the disabled veteran, and a spouse loses any benefits they were entitled to as a result of the veteran spouse’s disability rating upon divorce. However, a former spouse may retain some rights to military benefits, and some military benefits can be garnished to satisfy domestic support obligations.

Veterans Benefits and Divorce

Veterans disability benefits are a form of replacement income and compensation to a veteran whose disability impacts their ability to engage in the normal activities of daily life, including work. The right to collect those benefits belongs to the disabled veteran alone. 

The VA won’t apportion benefits and pay part to a former spouse, and benefits aren’t marital property subject to division by the divorce court. However, that doesn’t mean veterans benefits are entirely protected. VA disability payments are considered income for the purpose of determining both child support and spousal maintenance. So, depending on the income of each party and whether there are minor children of the marriage, a disabled veteran may end up making some domestic support payments from their disability benefits. 

However, veterans disability benefits are not subject to garnishment, even for child support and other domestic support obligations. The one exception is when the disabled veteran has waived retired pay or retainer pay to receive disability benefits. In that case, the benefits may be garnished only to the extent that they are received in lieu of retired pay or retainer pay.

If you are a disabled veteran and are receiving additional disability benefits because your spouse is listed as a dependent, you must notify the VA right away if you get divorced. If you do not provide timely notice, the VA may continue to pay you additional benefits you are not entitled to, resulting in an overpayment. 

Military Benefits and Divorce

Most military benefits are lost upon divorce. However, there are some exceptions, primarily impacting divorcing and former spouses of long-term servicemembers. 

Military Retired Pay

There is no federal or military-based right of a former spouse to share in military retired pay. However, federal law grants states the authority to treat military retired pay as a marital asset in divorce cases. That means that whether and to what extent a former spouse is entitled to a portion of military retirement benefits will depend on the state where the divorce takes place. 

If a divorce court does award one spouse a share of the other’s military retired pay, the recipient spouse may apply to the Defense Finance and Accounting Service (DFAS) to have that portion paid to them directly. However, to qualify for direct payments the marriage must have overlapped by at least 10 years with the military spouse’s creditable service.

TRICARE, PX, and Commissary Privileges

These additional benefits may be available to a former spouse, but only in very narrow circumstances. In order to qualify for continuing benefits:

• The military spouse must have served for at least 20 years, 
• The marriage must have lasted for at least 20 years, and
• The marriage and military service must have overlapped by at least 20 years

If the first two criteria are met but the overlap was at least 15 years but less than 20, the divorced spouse will be entitled to one year of transitional TRICARE benefits.

Former spouses qualifying for the benefits described in this section must apply through the Defense Enrollment Eligibility Reporting System (DEERS) within 90 days of the divorce. 

Survivor Benefit Plan Payments

The Survivor Benefit Plan allows a military member to provide inflation-adjusted monthly income for eligible survivors. The amount of the benefit is based on a portion of military retired pay, and the service member or retiree pays premiums for this coverage.

A former spouse may be a beneficiary. However, if the service member is retired, the former spouse can be a beneficiary only if the retired service member had previously elected spousal benefits. The amount of the benefits cannot be increased from the prior election for spousal benefits, and divorce courts have no power to order such an increase.

These benefits can be lost if the former spouse who is entitled to SBP benefits remarries before the age of 55. Remarriage after the age of 55 will not impact SBP payments. And, if the former spouse remarries before 55 and loses benefits, those benefits may be reinstated if the new marriage ends in death, divorce, or annulment. 

Veterans and Military Benefits Can Be Complicated

If you’re confused by the different ways different benefits are treated, the time limits and minimum time periods required, and the interplay among federal law, military rules, and state divorce courts, you are far from alone. Unfortunately, that confusion can mean missed opportunities and lost benefits–just as it can when navigating other aspects of veterans benefits. 

Veterans Help Group was formed to help disabled veterans and their dependents and survivors understand their rights and options and pursue the benefits they deserve. Our experienced veterans disability advocates can help untangle the web of regulations and procedures and help you put forth the best claim or appeal possible. 

To learn more, call 855-855-8992 right now, or contact us here. The initial consultation is free, and there’s no obligation.