Divorced Spouses and Military Benefits
If you’re a retired service member, a veteran receiving VA disability or other veterans’ benefits, or the spouse of either, divorce can impact your benefits. How divorce affects your benefits depends on a variety of factors, including whether you are the veteran or the spouse and the type of benefits you are receiving. In some cases, other factors such as the veteran’s VA disability rating and the length of the marriage can also have an impact.
The best way to get complete, reliable information about how divorce may affect your benefits is to talk to an experienced veterans benefits advocate. This page offers a high-level overview of how different types of benefits are treated when a couple divorces.
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Divorce May Change the Amount of Benefits Received
A veteran receiving VA disability benefits may see a decrease in their monthly compensation after divorce. That’s because disabled veterans with a 30% disability rating or higher can get additional benefits for eligible dependents, including spouses and stepchildren. After divorce, neither will be considered a dependent. So, that additional compensation will stop.
When that happens, it’s up to the veteran to remove those dependents. You’ll want to do that as soon as possible, because any amount overpaid because dependents were not removed can be deducted from future benefits.
VA Benefits for Former Spouses of Veterans
The divorced spouse of a veteran may, in certain circumstances, still qualify for some benefits. However, there are strict restrictions. For example, the divorced spouse of a veteran entitled to military retired pay may receive 50% of the retirement benefit, along with access to TRICARE services and commissary privileges. But, the former spouse is eligible for these benefits only if:
- The veteran has at least 20 years of military service, and
- The marriage lasted at least 20 years, and
- The marriage and military service overlapped by at least 20 years, and
- The former spouse is unmarried
The best way to get full information about the benefits that may be available to you as the divorced spouse of a veteran is to consult an experienced veterans benefits advocate.
What the 20/20/20 Rule Means
The eligibility standard described above is commonly called the 20/20/20 rule, and it is one of the more favorable outcomes a former spouse can receive in a military divorce. When all three conditions are met, the former spouse’s access to TRICARE is indefinite, as long as they remain unmarried and do not become eligible for employer-sponsored health insurance that is comparable to TRICARE.
There is also a narrower version of this standard: the 20/20/15 rule. Under this rule, the marriage and military service must have overlapped by at least 15 years instead of 20. Former spouses who qualify under the 20/20/15 rule may receive transitional TRICARE coverage for one year following the divorce, but do not receive lifetime access.
It is worth noting that commissary and exchange privileges follow different rules than TRICARE. Former spouses who meet the full 20/20/20 standard generally retain commissary access. Those who do not meet that standard typically do not, even if a divorce court order purports to grant them those privileges. Federal law governs military benefit eligibility, and a state court cannot override it.
Benefits That Are Not Available to Former Spouses
Some benefits end at divorce regardless of the length of the marriage or military service. These include coverage under the Servicemembers’ Group Life Insurance (SGLI) policy, dependency and indemnity compensation (DIC) in most circumstances, and the ability to be listed as a beneficiary under the Survivor Benefit Plan (SBP) without a court order and the veteran’s consent.
If you are going through a divorce and you are concerned about losing health coverage or other benefits, it’s important to address these issues in the divorce agreement before the case is finalized. Once a divorce decree is entered, certain options may no longer be available.
Division of Military and Veterans Benefits in Divorce Court
There’s a lot of confusion about how military retirement and VA disability benefits are treated in divorce proceedings. In part, that’s because these two types of benefits are treated differently. In part, it’s because there are some exceptions to federal protections for veterans benefits.
Military Retired Pay is a Marital Asset
Just like most other types of retirement benefits, military retired pay is a marital asset and is subject to division by the divorce court. The spouse may be awarded up to 50% of the veteran’s retirement benefits. However, there are some complications that veterans and their soon-to-be-former spouses need to understand. First, federal law sets forth specific jurisdictional requirements for dividing military retirement benefits in a divorce case. So, a divorce court may have jurisdiction over a divorce case under state law but still not have the power to divide military retirement benefits unless the service member or former service member consents.
The way the award is entered also impacts how future benefits are calculated. If the former spouse is awarded a specific amount, that amount remains constant. However, if the former spouse is awarded a percentage, their benefits will be increased when cost-of-living adjustments are applied.
How the DFAS Direct Pay System Works
When a divorce court awards a portion of military retirement pay to a former spouse, payment does not always come from the veteran directly. In many cases, the former spouse can receive their share directly from the Defense Finance and Accounting Service (DFAS) through a process called direct payment.
To qualify for direct payment from DFAS, the marriage must have lasted at least 10 years and overlapped with at least 10 years of creditable military service. This is sometimes called the 10/10 rule. If those requirements are not met, the veteran is still obligated to pay the court-ordered amount, it simply must come from the veteran themselves rather than from DFAS directly.
Getting the court order right matters. DFAS has specific language requirements for the order dividing retirement pay. An order that does not conform to those requirements may be rejected, which can delay or complicate payment. If you are negotiating or litigating the division of military retirement pay, it’s worth making sure the court order is drafted with DFAS requirements in mind from the start.
VA Disability Pay is Not a Marital Asset
VA disability pay is, by federal statute, not a marital asset and not subject to division by the divorce court. But, this issue is a bit more complicated than it sounds. For example, though the divorce court can’t divide VA benefits, courts in many states will consider VA disability benefits as income when determining the amount of child support or spousal support a veteran is ordered to pay. As a practical matter, that means the veteran may have to use VA disability benefits to pay those obligations.
If the veteran fails to pay, they can be held in contempt of court. But, the divorce court can’t necessarily garnish those benefits to cover the support obligation like they could a paycheck or some other types of income. VA disability pay is subject to garnishment only if the veteran waived military retired pay to receive VA disability benefits, and only to the extent that the benefits are in lieu of retirement pay.
However, federal law does provide another option when a disabled veteran fails or refuses to pay child support. In some circumstances, the benefits may be apportioned–divided between the veteran and the dependent or dependents–when they are issued.
The Concurrent Retirement and Disability Pay (CRDP) Issue
One issue that comes up frequently in military divorces is concurrent retirement and disability pay, commonly referred to as CRDP. For many years, veterans who received VA disability compensation were required to waive an equivalent portion of their military retired pay, a practice sometimes called the VA offset.
CRDP eliminated the offset for many veterans with a disability rating of 50% or higher, allowing them to receive both their full military retirement and their VA disability compensation. However, the portion restored through CRDP is treated differently than straight retirement pay in divorce proceedings. Courts in different states have reached different conclusions about whether CRDP restoration is divisible as a marital asset.
This is an area where the outcome can vary significantly depending on where you live and how your divorce is litigated. If the VA offset and CRDP are issues in your divorce, it’s important to work with someone who understands how these benefits interact and how courts in your state have handled similar cases.
Survivor Benefit Plan Considerations in Divorce
The Survivor Benefit Plan, or SBP, is a program that allows retired service members to designate a beneficiary to receive a portion of their retirement pay after death. In an intact marriage, a spouse is often automatically the SBP beneficiary. Divorce changes that, but not always in the way people expect.
If a divorce court awards a former spouse continued SBP coverage, the veteran must elect former spouse coverage within one year of the divorce. If that election is not made on time, the coverage lapses, and the former spouse loses the benefit permanently, even if the court order requires it. The former spouse can also make a deemed election request to DFAS directly within that same one-year window, which can serve as a safeguard if the veteran does not act.
SBP premiums are deducted from retirement pay, and the cost is shared between the parties in some divorce agreements. The benefit itself pays the surviving former spouse up to 55% of the covered retirement amount. For former spouses who depend on the veteran’s retirement pay as income, SBP coverage can be one of the most financially significant issues in a military divorce.
If you are a veteran who wants to remove a former spouse as your SBP beneficiary after divorce, that also requires affirmative action on your part. Divorce alone does not automatically change your SBP election. Failure to update your beneficiary designation can result in unintended consequences for your estate and your family.
VA Benefits and Remarriage After Divorce
Remarriage can affect veterans’ benefits in ways that many people do not anticipate. If a veteran remarries, their new spouse may become eligible to be added as a dependent, which could increase their monthly compensation if their disability rating is 30% or higher. Adding a new spouse requires filing VA Form 21-686c, the same form used to remove a former spouse.
For former spouses, remarriage almost always ends any remaining benefit eligibility tied to their status as an unmarried former spouse. TRICARE coverage under the 20/20/20 rule, for example, ends upon remarriage. In some states, spousal support ordered in connection with a military divorce may also be reduced or terminated upon remarriage under state law, though this varies.
One exception worth knowing: if a former spouse remarries and that second marriage ends, either through death or divorce, their eligibility for certain former-spouse benefits may be restored. The rules on this are technical and fact-specific, and not all benefits work the same way. If you are a former spouse considering remarriage and you currently receive benefits tied to your veteran ex-spouse’s service, it’s worth getting clear on what you stand to lose before making that decision.
Frequently Asked Questions
Can my ex-spouse receive my VA disability benefits after divorce?
No. VA disability pay is protected by federal law and cannot be divided or awarded to a former spouse by a divorce court. That said, courts in many states will count VA disability benefits as income when calculating child support or spousal support obligations. So while your former spouse cannot receive your VA disability compensation directly, you may still be required to use those funds to meet support payments ordered by the court.
How long does a marriage need to last for a former spouse to keep military benefits?
It depends on which benefits you’re asking about. For full ongoing access to TRICARE, commissary, and exchange privileges, the marriage must have lasted at least 20 years, overlapping with at least 20 years of military service, the 20/20/20 rule. For a former spouse to receive their share of retirement pay directly from DFAS rather than from the veteran, the marriage must have overlapped with at least 10 years of military service. Different benefits carry different thresholds, which is one reason it’s important to understand exactly what is and isn’t on the table before a divorce is finalized.
Does divorce automatically update my VA and military benefit records?
No, and this is one of the most common mistakes veterans make after divorce. The VA does not receive automatic notification when a divorce is finalized. It is your responsibility to report the change and remove former dependents by filing VA Form 21-686c. Similarly, your Survivor Benefit Plan designation and DFAS records do not update on their own. Divorce triggers a series of administrative steps that must be taken affirmatively, and failing to act promptly can result in overpayments, unintended beneficiary designations, and other complications that are difficult to undo later.
Get Help Understanding Military and VA Disability Benefits During and After Divorce
If this all seems complicated, that’s because it is–and this overview includes only a few examples of possible scenarios. If you are a veteran who is divorcing while receiving military retirement pay or VA disability benefits, or you are the spouse of a veteran and considering divorce, it’s important that you have complete and accurate information about how benefits will be affected.
At Veterans Help Group, we are committed to helping veterans and their families secure the benefits they deserve, whether that means explaining your rights, assisting in putting together the strongest possible VA disability claim, appealing a denial or too-low disability rating. To learn more about how we can help, call 855-855-8992 right now, or fill out our contact form.
