Property Issues in Divorce Involving Military Personnel

In my article, YOU STAND FOR US; WE STAND FOR YOU, it was noted that military personnel are not immune from the tragedy of divorce; and like civilian divorces, the same property issues arise, but with some different rules. What I am focusing on in this article is RETIREMENT and post divorce entitlements for the non military spouse (“Former Spouse”).

For sake of brevity, I’ll refer to the Servicemember as a soldier.

A soldier is entitled to a pension (a Defined Benefits Plan) based on the number of years of satisfactory military service, generally the completion of 20 years. Until 1983, federal law was silent on the power of the State courts to divide military pensions. However, in the 1981 McCarthy case, the U.S. Supreme Court held that the Supremacy Clause of the Constitution prohibited the division of military retired pay as a community property asset. In dictum, the Court indicated that Congress could change that by appropriate legislation. Taking the hint, Congress enacted the Uniform Services Former Spouses’ Protection Act of 1983 (“USFSPA”). That Act gave divorced spouses the right to share in the military retired pay in proportion to the number of years of the marriage during the soldier’s years of satisfactory military service.

The soldier is generally required to serve a minimum of 20 years, and the retirement age is not as critical as the total number of years served. The retirement benefit at 20 years is 50% of the Base Pay at the date of retirement with the maximum benefit being 67% at 30 or more years of service.

In Texas, the Former Spouse would be entitled to 50% of the military retired pay based on the number of years of marriage during military service. This also is applicable to the weekend warrior, the Reservist. Unlike the active duty career soldier, whose military PENSION is based a minimum of 20 years, the reservist is based on the total number of points that will equate to twenty years. However, the Former Spouse’s share is still calculated the same way.

There are some unique quirks or Rules to this military pension system that is critical to property division considerations. The first Rule is the 10 year rule. Under USFSPA, the Defense Finance and Accounting Service (“DFAS”) is not required to garnish the retired military personnel’s retired pay for the benefit of the Former Spouse unless the marriage was ten years or longer as of the date of the divorce and overlapped 10 years of military service. In that case, a State Decree of Divorce ordering that the Former Spouse’s share of the military retirement be withheld from the military retiree’s retirement pay would not be honored.

The second Rule is that a Former Spouse may also be entitled to 55% of retiree’s monthly retirement pay as a lifetime annuity upon the death of the retiree. This annuity is known as the Survivor Benefit Plan (“SBP”) and is clearly a valuable entitlement for a Former Spouse. However, the retiree must make the selection to pay for the SBP and designate Former spouse as the beneficiary at the time of his retirement. Some don’t because the SBP payment is taken out of the retirement pay. The Former Spouse may lose this right if she remarries before her 55th birthday; yet, if she divorces later, she may be reinstated. Go figure.

The third significant Rule is the 20/20/20 Rule. As of the date of the divorce, a marriage of 20 years; a military service of at least 20 years and the 20 years of marriage overlapped those 20 years of military service by the soldier. If the Former Spouse meets this Rule, the Former Spouse may be entitled to lifetime TRICARE (health care) and commissary and exchange benefits, as well as the appropriate portion of the retiree’s retirement pay and the SBP. This is a valuable right that can be a part of the negotiations, especially in light of the relatively young age of military retirees compared to civilian retirees.

But what is the Rule if the there’s not 20 years of overlapping marriage? The 20/20/15 Rule comes into play. 20 years of service and 20 years of marriage with more than 15 but less than 20 years of overlapping marriage. The SBP and the proportionate share of the retirement pay is still available, but not commissary and exchange privileges. TRICARE is only for one year after the divorce is final. There is, however, a post TRICARE health insurance plan that can be purchased by the Former Spouse that very similar to TRICARE. Like COBRA in the civilian world, it has a short life span and in this case only 18 months. However, relatively speaking, it is much cheaper than COBRA. Thus, the retiree gets TRICARE for Life; the Former Spouse gets TRICARE for one Year (possible 36 months).

The 10 year Rule, the 20/20/15 Rule and the 20/20/20: all have significant impact on the division of military retirement issues. Also, the SBP is a part of the property settlement picture. Obviously, when dealing with a divorce involving military personnel, these issues must be explored as soon as possible in the process.

Are We Married or Not?

There is a common public misconception as to what it takes to create a common law marriage. Many people believe such a marriage is created by the length of time a couple lives together. The truth is that a couple could live together for many years, even have children, and still not be married. So what does it take to create a common law marriage or, as the Texas Family Code (Chapter 2, subchapter E) calls it, a marriage without formalities?

In Texas you can establish a common law marriage two ways. The first would be to execute a declaration under §2.402 of the Texas Family Code. This is a document signed under oath by both parties that they are married and registered with the county clerk. The second is a three-pronged test requiring evidence showing: a) an agreement to be married, b) cohabitation in Texas and c) a “holding out” to others that the parties are married.

The third prong, “holding out,” is the tough one. This requires that the couple represent to others that they are husband and wife. It is not enough that one of the parties represents that they are married if the other party never holds him or herself out to be married or confirms the representation. There may be evidence that both parties have made oral statements that they are husband and wife; however, I have found that the best evidence would be a document signed by both parties. My favorite is a federal income tax return. If they check the married filing jointly box and both sign the return, they are doing so under penalty of perjury. You might also want to see if they have both signed a deed, a lease or some other legal document that declares they are husband and wife. The document must make that representation of husband and wife or marriage to be valid proof (i.e., jointly purchasing property does not provide proof without the husband and wife designation nor does having a child).

It is a rebuttable presumption that the parties did not enter an agreement to be married if a divorce proceeding is not commenced within two years from the date the parties separated and ceased living together. So, there you have it — common law divorce.

So why would a person want to prove a common law marriage? It wouldn’t really matter in a suit affecting the parent-child relationship. The marriage would not change the custody issues. It’s like everything else; it comes down to the money. With no marriage there is no community property. So if the parties acquired a lot of property during their cohabitation, one of them might want to prove that a marriage existed.