Benefits of Former Military Spouses


Posted on September 12th, 2012, by Benjamin Carafiol in Family Law, Military Divorce. Comments Off on Benefits of Former Military Spouses

Military DivorceMost spouses of active duty servicemembers contribute greatly to the marriage. They stay behind and take care of the children when the Marine, Sailor, Airman, Soldier or Coast Guardsman is deployed. They support the member through advancement in rank. They uproot their lives every few years as the family moves from duty station to duty station.

The select few members that make a career out of their service are rewarded with monthly retired pay for the rest of their lives and additional benefits as retired servicemembers. Should the marriage continue, the spouse (and family) will share in those benefits. If the marriage ends, however, what—if anything—will the member’s former spouse receive?

20/20/20 Spouses

Some former spouses will be entitled to retain full benefits: medical coverage through Tricare, access to the military exchange, base privileges and commissary privileges. Not surprisingly, for a spouse to retain full military benefits he or she must meet the strictest set of requirements. Specifically, the former spouse must qualify under what is commonly referred to as the “20/20/20 Rule.”

The 20/20/20 Rule, found in 10 U.S.C. § 1072(2)(F), requires the former spouse to show three things: first, that the servicemember put in at least 20 years of creditable service; second, that the parties’ marriage lasted at least 20 years; and third, that the period of the marriage overlapped the period of service by at least 20 years.

These benefits can be suspended, terminated, and in some cases then reinstated depending on the actions taken by the former spouse after separation and divorce. If the former spouse is covered by an employer-sponsored health care plan, their medical benefits will be suspended. Should the former spouse remarry, their base privileges, commissary privileges, and access to the military exchange will be suspended. However, if the subsequent marriage ends for any reason, these privileges will be reinstated. Remarriage will also terminate the former spouse’s medical benefits—and these benefits will not not be reinstated if the subsequent marriage ends.

The important dates for measuring the three different 20 year components of the 20/20/20 Rule are the servicemember’s start and end dates for their creditable service, the date the parties were married, and the date the parties are divorced. Like the 10/10 Rule, parties could be separated for several years and still meet the necessary requirements for a 20/20/20 former spouse. As long as on the date the judge signs a divorce decree all three 20s are met, the former spouse will retain full benefits.

20/20/15 Spouses

In the event a former spouse cannot qualify under the 20/20/20 Rule, he or she may still be eligible to retain a portion of their military benefits as they transition from being a military spouse to a former spouse.

To qualify for transitional military benefits, a former spouse must satisfy the requirements of 10 U.S.C. § 1072(2)(G), more commonly referred to as the “20/20/15 Rule.” The 20/20/15 rule requires the former spouse to show three things: first, that the servicemember put in at least 20 years of creditable service; second, that the parties’ marriage lasted at least 20 years; and third, that the period of the marriage overlapped the period of service by at least 15 years.

Should these requirements be met, the former spouse will be entitled to retain Tricare medical coverage, but only for a transitional period of one year. Unlike a 20/20/20 former spouse, a 20/20/15 former spouse will not have access to the military exchange, base privileges or commissary privileges.

If the former spouse is covered by an employer-sponsored health care plan, their Tricare medical benefits will be suspended. Those benefits will be reinstated if the 20/20/15 former spouse loses that employer-sponsored coverage, but only for the remainder of the original one year post-divorce.

As with the 20/20/20 Rule, the important dates for the 20/20/15 Rule are the servicemember’s start and end dates for their creditable service, the date the parties were married, and the date the parties are divorced.

If you are a military servicemember or spouse contemplating separation and divorce, the ability to keep full military benefits may be the single most important question in your case. If at all possible, you should seek to meet the requirements of the 20/20/20 Rule. If there is simply no way to meet all three requirements, however, you can at least secure transitional Tricare coverage for one year by making it to 20/20/15.

When meeting even the 20/20/15 Rule is not an option, all is not lost—some medical benefits are available even to former spouses who fall short of 15 years of overlap between service and marriage, under the “Continued Health Care Benefit Program.”

Continued Health Care Benefit Program

The Continued Health Care Benefit Program (CHCBP), enacted in 10 U.S.C. 1078a, is available for former spouses who cannot qualify for Tricare coverage under the 20/20/20 or 20/20/15 Rules. The CHCBP offers a COBRA-style program that allows any former spouses who were covered under Tricare on the day before entry of a final divorce decree to pay for continued medical coverage. There is no minimum required length of marriage to enroll in CHCBP, nor is there a minimum required length of creditable service time.

The CHCBP is not the same as Tricare, but the services available are similar. The most significant potential benefits of coverage under the CHCBP are the guaranteed offer of coverage if no other coverage (such as employer coverage) is available, and the continued coverage for an individual with preexisting conditions that could complicate private insurance coverage.

There are two coverage options under the CHCBP: transitional coverage and unlimited coverage. Transitional coverage is available to any former spouse meeting the above requirements for a period of 36 months. Additional requirements must be met to qualify for unlimited coverage: the former spouse must not have remarried before the age of 55; the former spouse must have been enrolled as a dependent in an approved health care benefits program (Tricare, DEERS, CHCBP) at any point in time during the 18 months before the end of the marriage; and the former spouse must be receiving a share of the servicemember’s military retired pay or Survivor Benefit Plan (SBP) annuity, OR have a court order for the payment of any portion of the servicemember’s military retired pay, OR have a written agreement providing for an SBP annuity for the former spouse. If all of these conditions are met, the former spouse will be eligible to keep medical coverage through the CHCBP indefinitely.

These requirements for unlimited coverage are commonly met in many military divorce cases; however, it is far from guaranteed that every former spouse will qualify. Should a party agree to receive spousal support in lieu of a division of military retirement, for example, he or she would fail to meet the CHCBP requirements for unlimited coverage. Further, remarriage will terminate CHCBP coverage if it occurs before the former spouse reaches the age of 55.

If you do not qualify for Tricare coverage as a 20/20/20 or 20/20/15 former spouse, it is imperative that you enroll in the CHCBP as soon as possible after your divorce is final. An individual must enroll within 60 days of losing Tricare coverage in order to participate in the CBCBP. Failure to do so will in almost all cases result in an inability to enroll and the loss of potential coverage for preexisting conditions or even coverage at all.

If you are a military servicemember or spouse contemplating separation and divorce, the substance of your divorce will play a significant role in the former spouse’s ability to obtain medical insurance coverage. Without careful consideration of the rules and requirements of the CHCBP, you may inadvertently remove the potential for continued medical insurance coverage.

Our Military Divorce Lawyers

The military divorce lawyers at Livesay & Myers, P.C. have extensive experience with the unique issues that arise in military divorce cases, including former spouse benefits. From our five convenient office locations, we represent both servicemembers and spouses across Northern Virginia. Contact us to schedule a consultation today.

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About 

Ben Carafiol is a senior family lawyer in the Fredericksburg office of Livesay & Myers. He has years of experience representing clients in the courts of Fredericksburg, Stafford, Spotsylvania and surrounding areas. Knowledgeable in all areas of family law, he is particularly experienced with issues of military and government retirement.



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