There are numerous military-specific spousal maintenance issues with divorce. Ones both parties should become familiar with at the outset, before court proceedings begin. Consider the impact deployment could have on payment of temporary spousal support or alimony. What goes into calculating support for a civilian spouse living overseas in Germany, Japan, Australia, or the Middle East? With U.S. military bases established literally around the globe, the potential for conflicts of laws in domestic relations cases is substantial. The Hague Convention and international laws are a necessary aspect of military divorce. Where spouses and children reside in another country or the service member is overseas for extended duty while the family is living here in Arizona. Things can get complicated. Let’s simplify matters just a bit.
Spousal maintenance orders in Arizona law come in three basic types. Permanent orders in the divorce decree; post-decree modified orders with changed circumstances; and interim orders in force temporarily while the case is ongoing. The trial court’s final judgment on spousal maintenance may be appealed by either party. At Stewart Law Group, trial attorneys experienced in military divorce matters handle our clients’ appeals, too.
In Arizona law, child custody, child support, and spousal support orders may be revised if certain conditions are met. (Property divisions may be appealed, but cannot be modified post-decree.) Regarding these post-decree modifications, the family law court has continuing jurisdiction to modify spousal maintenance awards until those orders terminate. For any spousal maintenance order to be modified after the divorce is final, a substantial and continuing change in circumstances must be shown since the initial order was entered. ARS § 25-327. This assumes that the initial order did not have a non-modification clause in the parties’ separation agreement preventing post-decree changes. In some cases, spouses of service members may be more inclined to file for modified support than their civilian counterparts. After all, military life is different from civilian life. Careers get suspended, sometimes indefinitely, to relocate whenever the service member is stationed at a base in a different state or country. The spouses of service members are often stay-at-home parents raising children single-handedly for months at a time. Doing their best to fulfill the role of both parents to make up for the service member’s deployment and lengthy absence from home-life.
Shortly after the divorce commences, an economically dependent spouse ordinarily requests interim support. This is in hopes of maintaining financial stability during the proceedings, which can be delayed if an active duty spouse is unable to appear and defend. When the court agrees, it enters what are known as pendente lite orders.
Temporary spousal maintenance along with interim child support are feasible while divorce is pending, but only under the proper circumstances. Absent an agreement to provide temporary support, a court hearing should be set. Both parties would be notified to appear and make their respective cases on the support question: Should temporary support be ordered? If so, then how much?
Again, an active duty spouse who cannot obtain leave has a problem. The solution is to protect the individual right to appear and defend in court by invoking the Servicemembers Civil Relief Act (SCRA). This would suspend proceedings on the spousal support issue.
Although home-life is quite different for military families, the same Arizona spousal maintenance factors apply to both civilian and military divorce cases. See ARS § 25-319. Gender has no bearing on the court’s determination to award spousal support. Still, there is an important federal statute applicable only to military divorce and the service member’s obligation to support his or her former spouse.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) addresses the division of military pensions as marital property in divorce and payment of spousal support. (Be sure to read our overview of how military retired pay, specifically, is divided as community property in Arizona divorce.)
To begin, the portion of the military spouse’s retired pay determined to be a marital asset must be divided with each party receiving an equal share. The service member’s remaining disposable retired pay is separate property. That means it will be considered income or a financial resource from which family support obligations are to be paid (that’s true for spousal maintenance and child support).
When the retired service member has a military pension or Thrift Savings Plan, the court may divide up to 50% of retired pay as a community asset. With support orders thrown into the mix, the court could assign as much as 65% of the service member’s retired pay to the other spouse. There is the division of marital property (not to exceed half the service member’s monthly retired pay) plus orders for spousal support and child support (not to exceed 65% of monthly retired pay). These are the maximums the DFAS will pay a supported spouse.
What happens when the military spouse was previously married? What if the family law judge orders more money from the military pension than DFAS will pay? In every scenario, Arizona’s spousal maintenance factors are controlling with regard to the supported spouse’s need and the supporting spouse’s ability to pay, among other things. Do these circumstances parallel your own? Consult an attorney experienced in military family law before negotiating a spousal maintenance agreement with the other spouse.
What is required to receive automatic payments directly from the Defense Finance Accounting Service? For one, the party will need a court order specifying payment of spousal maintenance or child support. For another, the DFAS’ 10-year test must be satisfied. For the supported spouse to receive direct payments from DFAS, 10 years of marriage must coincide with 10 years of creditable military service. If a 10-year overlap of marriage with creditable service is not established, then DFAS will not send payments directly to a former spouse. Yes, the supported spouse is still owned the money. But No, the DFAS will not be involved in collecting it.
Could it be a close call? Is the marriage one of 10 or more years, but only nine years creditable service overlap it? Strategic delay may be the better course.
Looking at the big picture, it may be far better to have DFAS issue direct payments than the alternative. That is, to depend upon the service member to make regular alimony payments to the other party for however many months or years it is ordered.
There’s another aspect of the USFSPA we need to talk about. One involving disabled veterans.
Generally, military disability pay is personal to the service member. As his or her sole and separate property, it is never a divisible community asset in divorce. This is in sharp contrast to any marital component of a military pension, which is divisible in divorce under the USFSPA. That is not the end of the story, though.
A service member’s disability pay could be an income source for paying spousal maintenance or child support, but only when state law allows it to be. Arizona does not so allow if the disability was service-connected or combat-related under federal law. When disability retired pay stems from a service-connected disability, the court is prohibited from including that income for purposes of calculating a spousal maintenance award:
A. In determining whether to award spousal maintenance or the amount of any award of spousal maintenance to a requesting party, the court shall not consider any federal disability benefits awarded to the other spouse for service-connected disabilities pursuant to 10 USC § 1413a or 38 USC Chapter 11.
ARS § 25-530(A). [Emphasis added.]
Be assured, all other sources of income will be considered in calculating spousal maintenance.
Generally, an annuity is a contract between an insurance company and the insured. The purpose of the annuity is to provide an insured person with a steady source of retirement income in addition to a pension, IRA, or other retirement plan. For military personnel, the Survivor Benefit Plan (SBP) is an annuity for the service member or, alternatively, for the beneficiary who survives the death of the retired service member. Service members who participate in SBPs are either entitled to retired pay or eligible for reserve component retired pay. 10 U.S.C. § 1448. More specifically, the beneficiary is eligible for as much as 55% of the service member’s selected base amount (likely the full pension). Those annuity payments continue for life of the beneficiary. Deciding who pays the SBP premiums is negotiable.
Be mindful that SBPs are neither pensions nor community property. Having said that, when the SBP beneficiary is a former spouse, he or she is entitled to a portion of the deceased service member’s pay.
Although not a divisible asset, the SBP election does impact property division for a surviving spouse. How so? Because military pensions terminate upon the death of the service member and with it the former spouse’s community share. The SBP beneficiary, however, will continue to receive an income flow for life. The SBP effectively replaces the former spouse’s share of the military pension with income from the annuity. Does the service member have an SBP? The benefit is far too important to leave unaddressed in the divorce. There are critical deadlines and restrictions. For instance, the former spouse’s remarriage before age 55 suspends SBP coverage. Talk to an attorney.
May a service member change SBP election during his or her lifetime? Maybe. The initial SBP election is considered permanent. However, two exceptions allow the service member to change election. First, he or she may disenroll from SBP if the former spouse as the beneficiary agrees. Consent must be in writing! Second, if the retired service member remarries, then the current spouse may be added as the new SBP beneficiary (with the ex-spouse removed from the plan) by satisfying one of these three conditions:
1. The initial election was court-ordered and the service member has obtained modified orders regarding the election; or
2. The election was by written agreement with the former spouse who now concurs with an election change; or
3. The military retiree’s election was unilateral (not court-ordered and not mutually agreed to) and notice to the former spouse of an election change was given.
If the service member does not have an SBP and the parties agree that the former spouse is to be the beneficiary, then the service member has one year to elect SBP coverage. What if the service member fails to follow through? If need be, the former spouse can deem the election, filing directly and without delay. Within a year of divorce, file DD Form 2656-10 with the DoD to deem an SBP election against a service member who is active duty or receiving retired pay.
In a departure from survivor benefits, let’s move on to continuing military health care coverage after divorce, beginning with the 20/20/20 Rule.
Providing for an economically dependent spouse in military divorce falls under spousal maintenance law in Arizona, one aspect of which is health care coverage. Additionally, the DoD’s 20/20/20 Rule makes medical care available to the civilian spouse because of the long duration of the marriage. There is no corollary to this in civilian divorce. There are certainly non-military health insurance options available to former spouses, through employer benefit programs and ACA exchanges. But the security of full medical care through the DoD – TRICARE – is hard to improve upon.
Here is how the 20/20/20 Rule translates into support for a former spouse. In addition to commissary and exchange privileges (PX, BX, NEX, MCX, or CGX), satisfying the 20/20/20 Rule empowers the DoD to extend full medical care to the former spouse for life as a qualifying party.
The 20/20/20 Rule only benefits the former spouse who satisfies the following criteria:
• Military spouse accumulated 20 years creditable service;
• Spouses were married to each other at least 20 years; and
• There was a 20-year coincidence of marriage with military service.
In a nutshell, there must be a 20-year overlap of 20 years creditable service and 20 years of marriage. Although the number of years they were married and the period of creditable service could be longer, both must have occurred simultaneously for at least 20-years. When counting years of marriage, the date of the divorce decree suffices as the marriage termination date.
Only creditable military service counts toward a military pension. (Learn about division of military pensions in Arizona divorce.) For complete details regarding a service member’s total creditable service, look at the Report of Separation. (See DD Form 214, Certificate of Release or Discharge from Active Duty). For reserve component, total creditable service depends upon a military career of earned reserve retirement credit points. Be sure to obtain the service member’s Point Credit Summary Statement.
Before we move on to the DoD’s next rule, understand that negotiating agreements with assistance of counsel is an integral procedure with Arizona divorce. With military divorces, however, the parties cannot negotiate agree to take away the former spouse’s health care through the military spouse’s plan. Be prepared. The civilian spouse’s right to health care benefits through TRICARE will continue so long as he or she remains unmarried and without healthcare coverage through an employer benefit plan.
What if the spouses nearly satisfy the 20/20/20 Rule, but not quite? There is also the DoD’s 20/20/15 Rule. This lesser rule applies when there is a 15-year overlap of marriage with creditable military service. That would be 20 years creditable service during 20 years of marriage with a 15-year concurrence. The DoD extends full TRICARE medical coverage for one year to the former spouse who satisfies the 20/20/15 Rule. Be forewarned: The former spouse who remarries will lose all military healthcare benefits under both the 20/20/20 and 20/20/15 Rules.
What happens when that year is over? Temporary coverage becomes available. Similar to COBRA for civilians who lost health care coverage as a result of job termination, divorce or legal separation, the Continued Health Care Benefit Program (CHCBP) is available to support a former spouse for another 18 to 36 months after TRICARE eligibility ends. See DD Form 2837.
CHCBP is a health care bridge much like COBRA. When a former spouse loses TRICARE eligibility under the DoD’s 20/20/15 Rule, signing up for CHCBP is an important next step to maintain medical benefits. So long as the former spouse has neither remarried nor obtained insurance through an employer, he or she is eligible for CHCBP. Premiums must be paid or CHCBP coverage will lapse, of course, but responsibility for those premiums can be negotiated in advance.
Be sure you have information and understand your spousal support rights and obligations under both state and federal law. Read the book of Military Divorce Essentials published by Stewart Law Group and meet with an attorney who can help.