Kara Sears
Military spousal benefits are a valuable asset, often worth hundreds of thousands of dollars, and are subject to division at the time of divorce or legal separation. While the benefits are typically available to spouses of military members, the question of whether a common-law spouse can claim these benefits is more complex. In the United States, the recognition of common-law marriage varies by state, and it is important to understand the specific state laws and requirements. Some states may require proof of continuous cohabitation or living together, in addition to providing necessary documentation such as birth certificates and Social Security cards. It is recommended to seek legal advice for a comprehensive understanding of an individual's specific situation.
| Characteristics | Values |
|---|---|
| Common-law marriage spousal benefits | Depend on state law |
| Legal marriage spousal benefits | Eligible for TRICARE, Social Security benefits, Survivor Benefit Plan, and other military privileges |
| Divorce before retirement | Specific coverage level directed by court order |
| Divorce after retirement | Former spouse's coverage will be the same amount as the spouse coverage |
| Remarriage before age 55 | Loss of eligibility as a beneficiary unless remarriage ends |
| Legal separation | Does count as marriage for purposes of former spouse medical and other benefits |
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What You'll Learn
Common-law marriage requirements
In the United States, common-law marriage has existed since colonial times, when America was a colony of England. Common-law marriage is a legal marriage and an informal marriage, meaning that the married couple never had a formal wedding ceremony and never obtained a marriage license or marriage certificate.
Today, common-law marriage is recognized in seven states and the District of Columbia. States that allow for common-law marriage can set their own rules for who qualifies. While the specific requirements may vary by state, here are some general common-law marriage requirements:
- Living together: Although there is no statutory requirement for the length of time a couple needs to live together, generally, the longer a couple lives together, the stronger their case is for common-law marriage.
- Legal right or "capacity" to marry: Both partners must have the legal capacity to marry. Typically, this means they must be at least 18 years old and of sound mind. Additionally, they cannot already be married to other people.
- Intent: Both partners must intend to be married and behave as a married couple. They must present themselves as a married couple to friends, family, and the public.
It is important to note that the recognition of common-law marriage in the context of military spousal benefits may vary. While common-law marriage may be recognized in certain states, the Uniformed Services Former Spouse Protection Act (USFSPA) defers to the state law where the military divorce was filed when determining spousal benefits. Therefore, it is advisable to seek legal advice specific to your state and situation.
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Military spousal benefits eligibility
Military spousal benefits are available to eligible spouses and ex-spouses of military members. To receive any military benefits, spouses must be registered in the Defense Enrollment Eligibility Reporting System (DEERS) and have a military ID card.
Healthcare Benefits
Active-duty military families, regardless of the branch of service, receive healthcare benefits through Tricare. Tricare is not an insurance company, but it helps military families access healthcare and pay medical bills. There are two types of Tricare: Tricare Select and Tricare Prime. Non-activated guard or reserve families can also use Tricare under specific programs. Dental insurance is provided through United Concordia.
Shopping Benefits
Military shopping benefits, or "non-monetary compensation," help military families save money on various items. Most bases worldwide have a military commissary operated by the Defense Commissary Agency (DeCA), where items are sold at cost. Bases typically also have a department store called an exchange, as well as gas stations, liquor stores, and fast food outlets. These stores operate independently but contribute a percentage of their revenue to military family programs.
Survivor Benefit Plan
Under the Uniformed Services Former Spouse Protection Act, a former spouse can be designated as a Survivor Benefit Plan beneficiary if they were previously listed as a spouse beneficiary. In the case of divorce before retirement, the coverage level is directed by a court order. If the former spouse remarries before age 55, they lose eligibility as a beneficiary unless they divorce again, in which case eligibility is restored.
Divorce Benefits
The Uniformed Services Former Spouse Protection Act provides certain benefits to eligible former spouses of military members. An unremarried former spouse may receive medical, commissary, exchange, and theatre privileges under the Morale, Welfare, and Recreation program if they meet the 20/20/20 rule. This rule states that the former spouse was married to the military member for at least 20 years at the divorce, the military member performed at least 20 years of creditable service, and the former spouse was married during at least 20 years of that service. Former spouses who meet this rule are permitted full access to benefits, including Tricare and inpatient and outpatient care at military treatment facilities.
In the case of the 20/20/15 rule, where the marriage overlapped the period of service by at least 15 years, the former spouse is not eligible for military exchange, installation privileges, or commissary privileges. However, they may be eligible for a portion of retired pay and access to healthcare and military exchanges and commissaries if they meet certain requirements. After a divorce, ex-spouses not meeting the 20/20/20 or 20/20/15 criteria will lose their commissary and exchange privileges.
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Survivor Benefit Plan
The Uniformed Services Former Spouse Protection Act (USFSPA) provides certain benefits to former spouses of military members. An unremarried former spouse may receive medical, commissary, exchange, and theatre privileges under the Morale, Welfare, and Recreation program if they meet the requirements of the 20/20/20 rule. This rule states that the former spouse must have been married to the military member for at least 20 years at the time of the divorce, dissolution, or annulment. The military member must have performed at least 20 years of service that is creditable in determining eligibility for retired pay. The former spouse must have been married to the member during at least 20 years of the member's retirement-creditable service.
Under the USFSPA, a former spouse can be designated as a Survivor Benefit Plan (SBP) beneficiary if the spouse was previously listed as a spouse beneficiary. In the case of divorce after retirement, the former spouse's coverage will remain the same as the spouse coverage. However, in the case of divorce before retirement, the specific coverage level should be directed by a court order. If the former spouse remarries before the age of 55, they lose eligibility as a beneficiary unless the remarriage ends, in which case eligibility is restored. It's important to note that remarriage may affect survivorship rights under the SBP, but it likely won't impact the civilian ex-spouse's right to a share of the retired pay.
The 20/20/20 rule is crucial for former spouses seeking to maintain access to benefits. If the former spouse meets these requirements, they are granted full access to benefits, including TRICARE and outpatient and inpatient care at military treatment facilities. In the case of a 20/20/15 former spouse, they must provide proof of 20 years of service and marriage, as well as 15 to 20 years of concurrence, to be eligible for one year of benefits after the divorce. After this period, they have the option to purchase a Department of Defense (DoD)-negotiated conversion health policy. Ex-spouses who do not meet these criteria will lose their commissary and exchange privileges once the divorce is finalized.
The Survivor Benefit Plan (SBP) is a crucial aspect of the benefits available to former spouses of military members. It provides financial security for surviving spouses, ensuring continued support even after the retirement or death of the military member. The SBP is designed to protect the interests of spouses who have dedicated their lives to supporting their partners in the military. By providing ongoing benefits, the SBP recognizes the sacrifices made by military spouses and ensures they are taken care of in the event of their partner's retirement or untimely passing.
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Child support and alimony
Military spousal benefits are not automatically granted to common-law spouses, as the Uniformed Services Former Spouse Protection Act (USFSPA) defers to the state law where the divorce was filed. However, alimony and child support are separate matters.
Alimony, also known as spousal support, is not significantly different in military divorces compared to civilian divorces. Divorce and alimony are governed by state laws, and military couples must obtain a divorce through the state court in the state in which they reside. While military benefits are not included in alimony calculations, there are federal laws that apply to military members and could impact alimony.
Each military service has policies requiring service members to provide temporary financial support to family members upon separation in the absence of an agreement or court order. The amount of support required varies across services, and enforcement is typically up to the chain of command. The Army, for example, bases its calculation on the non-locality Basic Allowance for Housing (BAH) rate, sometimes called BAH II. This rate changes annually and can be complicated when there are multiple families involved. In general, a soldier with one family is required to either let the family live in government-provided quarters or provide support equivalent to the current year's non-locality BAH rate. If there are multiple families or dependents living in separate locations, the BAH rate is divided among the eligible dependents.
The court may award rehabilitative alimony to help a spouse obtain training or education to re-enter the workforce, particularly if they have faced employment challenges due to frequent relocations. The amount and duration of alimony payments are at the judge's discretion, based on what they consider "fair and equitable" in the context of each case.
To ensure compliance with support payments, the ex-spouse can request a wage garnishment order or submit forms for an Involuntary Allotment if the service member misses spousal support payments for more than two months.
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Social Security benefits
A divorced military spouse may be eligible to receive Social Security benefits earned by their ex-spouse during their employment or military service. The criteria to receive Social Security benefits depend on whether the ex-spouse is alive or deceased. If the ex-spouse is deceased, their former partner can collect Social Security benefits if they are at least 62 years old, have not remarried, and if the couple was married for at least 10 years.
If the ex-spouse is still alive, their former spouse may be eligible for Social Security benefits if the couple was married for at least 10 years and if the ex-spouse has reached the age of retirement (62 years). In this case, the divorced spouse can receive up to 50% of their ex-spouse's Social Security benefits, provided they have been divorced for at least two years.
It is important to note that the Social Security Administration (SSA) will always pay the benefits that an individual earns through their work record first. If an individual has a spouse or ex-spouse who is eligible for benefits based on their work record, the SSA will pay that individual's benefits first. Only then will the SSA pay benefits to the eligible spouse or ex-spouse.
Additionally, if the divorced military spouse has dependent children, they may be able to receive additional Social Security benefits on behalf of those children. These benefits can be claimed regardless of the length of the marriage, as long as the dependent children meet the SSA's eligibility requirements.
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Frequently asked questions
The 20/20/20 rule states that the former spouse must have been married to the military member for at least 20 years, the military member must have performed at least 20 years of service, and the former spouse must have been married to the member during at least 20 years of the member's retirement-creditable service. If the former spouse meets these requirements, they are permitted full access to benefits, including TRICARE and outpatient and inpatient care at military treatment facilities.
The 20/20/15 rule states that if the marriage lasted 20 years and the service member served 20 credible years in the military, but only 15 years overlapped between the two, the former spouse is eligible for spousal benefits. In this case, the former spouse is eligible for one year of health benefits as long as they do not remarry and do not have employer-sponsored health insurance. After the year, they may purchase a health insurance policy through the Department of Defense.
Yes, in 2013, then-Secretary of Defense Panetta announced that certain benefits not blocked by DOMA would be made available to the same-sex domestic partners of service members. However, it is unclear if this is still in effect as, since then, DoD has revoked the domestic partnership benefits extension.
The Survivor's Benefit Plan is an annuity that allows retired service members to provide continued income to a named beneficiary in the event of their death. If a divorce occurs after retirement, the former spouse can be designated as a Survivor Benefit Plan beneficiary if they were previously listed as a spouse beneficiary.
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