Division of Assets in a Military Divorce

Posted in Divorce on June 26, 2018

The end of a military marriage is very likely to be more complex than a typical divorce between civilians for a number of reasons. Many U.S. service members face lengthy deployment times, frequent relocation, and deal with a very complicated system of pay and benefits from the military. Regardless of what branch of the military you or your spouse serve, a military divorce is going to work very differently than a civilian one.

BAH Settlements

One unique aspect of military divorces is the division of BAH, or the military’s Basic Allowance for Housing. This is a unique benefit of serving in the military that covers the majority of a service member’s housing and utility costs when they reside outside of military housing. Each service member receives a different amount of BAH depending on their rank, post location, and how many dependents they have. Child custody is one of the most important factors determining BAH settlements in military divorces.

It’s important to remember that the government pays BAH to service members, not their spouses. After a divorce, the spouse who does not serve in the military will not receive BAH payments. However, if the non-serving spouse receives child support as a term of the divorce, BAH may partially fund the child support.

Speak to a child custody lawyer at the Law Offices of Stephen Vertucci today for more information.

BAH in Military Divorces

If an active duty service member does not have primary custody, he or she will likely need to pay child support. However, this can be very problematic for lower-paid service members. Once a service member no longer has any dependents and moves back into military housing, he or she will no longer receive BAH. However, the military uses a calculation method called BAH-DIFF to authorize BAH payments if the service member’s child support obligations are more than his or her BAH-DIFF rate.

An active duty service member with primary custody will receive BAH at the “with-dependent” rate unless he or she receives family-style military quarters. If two former spouses are both active duty service members, they cannot both receive BAH for the same dependent. If the former spouses share legal and physical custody of a child, each will receive BAH at the “with-dependent” rate as long as the child remains in the parent’s physical custody. Each parent may not receive housing allowances for children during that time.

Other Assets and Benefits Subject to Division in Divorce

Since the creation of the Uniform Services Former Spouse Protection Act (USFSPA) in 1982, all 50 states have since decreed that a military pension is communal or marital property in a marriage, and as such is subject to division in divorce. The Department of Defense will not make direct payments of retirement benefits to a military member’s ex-spouse unless they were married for at least ten years, with overlap with the service member’s time in service creditable to his or her retirement.

If the service member served for at least 20 years, the marriage lasted at least 20 years, and there was at least 20 years of overlap between the two, the ex-spouse of the service member will receive all military benefits and privileges. This extends to medical benefits, commissary access, and Base Exchange or Post Exchange access.

It’s important to remember that a state court can only pursue a ruling under the USFSPA if the service member’s primary residence is within the court’s jurisdiction. If not, the service member will need to give their consent to the court to pursue the ruling. If the service member does not consent, the other spouse will need to file in the court that has jurisdiction over the service member’s primary residence.

Survivor benefit plans, TRICARE, VA service and disability benefits, and other issues all come into play with military divorces, and it’s essential for service members facing divorce to connect with experienced military divorce attorneys to settle these affairs. See our Divorce FAQ’s for more information.