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Transfer of Post-9/11 GI Bill Benefits in Divorce

Military DivorceMilitary divorce cases often involve discussion of military retired pay, the Survivor Benefit Plan, and continuation of the spouse’s medical benefits after divorce. A growing topic of discussion in these cases is the servicemember’s education benefits under the Post-9/11 GI Bill. Increasingly, these benefits are becoming a topic of negotiation in separation agreements between divorcing couples.

The GI Bill can cover all in-state tuition and fees at public degree-granting schools. It also provides for a housing stipend and book allowance while in school. The benefits may be used up to 15 years after the servicemember’s discharge from active duty. Eligibility for Post-9/11 GI Bill benefits requires a minimum of six years of service. Separate requirements apply for reservists. Servicemembers may transfer their Post-9/11 GI Bill benefits to a spouse or child, but only after meeting an additional service obligation of four years.

Under 38 U.S.C. § 3020(f)(3), Post-9/11 GI Bill benefits may not be treated as marital property and are not subject to division in a divorce action. However, that does not preclude divorcing couples from negotiating a mutually-agreeable transfer of this significant “asset.” In other words, although federal law prevents state courts from dividing Post-9/11 GI Bill benefits as property in contested divorce cases, parties may agree to a transfer as part of their separation and divorce.

For example, a servicemember may offer a spouse who is seeking spousal support a transfer of all or part of the member’s Post-9/11 GI Bill benefits, in exchange for a reduction in the member’s spousal support obligation.

As another example, divorcing couples may mutually agree to use the Post-9/11 GI Bill benefits for the benefit of their children. Parties often negotiate mutually-binding provisions in their separation agreement as to payment of a child’s future college tuition. To reduce the obligation on both parents, the servicemember and their spouse may agree to a provision that the member will transfer their Post-9/11 GI Bill benefits to the child.

Divorcing couples who reach an agreement to a transfer of Post-9/11 GI Bill benefits must be aware of two very important rules. First, the transfer must occur prior to the entry of a final divorce decree. A transfer may only be made to a “spouse,” not a “former spouse.”

Second, as a matter of federal law, the servicemember may revoke the transfer at any time while still serving on active duty or as a member of the Selected Reserve. Counsel for the spouse receiving the transferred benefit will want to ensure that any agreement includes a provision prohibiting the servicemember from revoking the transfer and protecting the spouse in the event the member violates that provision. The agreement might, for example, require the servicemember to pay any costs incurred by the spouse as a result of the member’s revoking the transfer, while also allowing the spouse to seek spousal support to make up for the lost benefit.

The divorce lawyers at Livesay & Myers, P.C. have extensive experience with the unique issues that arise in military divorce cases, including Post-9/11 GI Bill benefits. We represent servicemembers and spouses in Fairfax, Alexandria, Arlington, Manassas, Woodbridge, Prince William County, Fredericksburg, Spotsylvania, Stafford, and throughout Northern Virginia. Contact us to schedule a consultation today.