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Benefits of Former Spouses of Military Personnel

While serving as Assistant Staff Judge Advocate at the USAF Accounting and Finance Center, in the course of dealing with members, former spouses and their attorneys, I was frequetly asked what military benefits, if any, the former spouse might be entitled to. The Uniformed Services Former Spouses' Protection Act, in addition to authorizing direct payment of a portion of a military retirees pay to the former spouse, extended some base privileges to certain former spouses. The extent of the privileges is found in the original legislation and subsequent amendments. The provisions on continued benefits are found in 10 U.S.C. 1062 and 1072.

Frequently, continued health benefits becomes an important if not controlling issue, especially when the former spouse has a serious, pre-existing medical condition. This file summarizes the privileges granted and the criteria for entitlement to them, and provides some practical advice. It is current as of October 1, 1996. Throughout the article, "divorce" refers to dissolution, and annulment actions.

Full Privileges - the "20/20/20" former spouse

Full benefits (medical, commissary, base exchange, theater, etc.) are extended to an unremarried former spouse when:
1. the parties had been married for at least 20 years;
2. the member performed at least 20 years of service creditable for retired pay; and
3. there was at least a 20 year overlap of the marriage and the military service.

Concerning medical care, if the former spouse is covered by an employer-sponsored health care plan, medical care is not authorized. However, when the former spouse is no longer covered by the employer-sponsored plan, military medical care benefits may be reinstated upon application by the former spouse.

A question frequently arises as to what is meant by "covered" in the context of a situation in which a medical care plan is made available to the former spouse by her employer. The services have customarily allowed continued military medical privileges as long as the former spouse did not participate in the employer's plan, even though it was available. If a 20/20/20 former spouse remarries, eligibility for the benefits is terminated. If the subsequent marriage is ended by divorce or death, commissary, base exchange and theater privileges may be reinstated. Medical care cannot be reinstated. Limited privileges: the "20/20/15" former spouse.

Divorces before April 1, 1985

A four year renewable identification card authorizing medical benefits (no commissary, base exchange, or theater privileges) is awarded to an unremarried former spouse when:
1. the parties had been married for at least 20 years;
2. the member performed at least 20 years of service
creditable for retired pay; and
3. there was at least a 15 year overlap of the marriage and the military service.

Concerning medical care, if the former spouse is covered by an employer-sponsored health care plan, medical care is not authorized. However, when the former spouse is no longer covered by the employer-sponsored plan, military medical care benefits may be reinstated.

Divorces on or after April 1, 1985 and before September 30, 1988

These 20/20/15 former spouses qualify for medical benefits for two years from the date of the divorce, dissolution, or annulment or December 31, 1988, whichever is later. If the former spouse is covered by an employer-sponsored health care plan, medical care is not authorized. When the former spouse is no longer covered by the employer-sponsored plan, military medical care benefits may be reinstated. However, any reinstatement may not extend beyond the original two year entitlement.

Divorces on or after September 30, 1988

These 20/20/15 former spouses qualify for medical benefits for one year from the date of the divorce, dissolution or annulment. If the former spouse is covered by an employer-sponsored health care plan, medical care is not authorized. When the former spouse is no longer covered by the employer-sponsored plan, military medical care benefits may be reinstated. However, any reinstatement cannot extend beyond the original one year entitlement.

Former Spouses who were not at least "20/20/15" spouses do not qualify for any entitlements.

Private Health Insurance

>From time to time private insurance programs have been established to provide transition coverage for former spouses who will lose medical coverage. The most recent program was established in 1994, the

CONTINUED HEALTH CARE BENEFIT PROGRAM (CHCBP).

Although the program was designed primarily for those military members who are separated under one of the new incentive programs, coverage for former spouses is available.

Former spouses who do not remarry are eligible to purchase coverage for up to 36 months if prompt application is made. Information can be obtained from CHCBP at 1-800-809-6119.

Practical Advice

1. Remarriage. Medical benefits are permanently terminated upon remarriage. Former spouses frequently confuse the fact that remarriage will seldom affect the non-member's right to a share of the retired pay as property with the effect of remarriage on other issues, such as benefits. (Remarriage will also affect survivorship rights if the non-member is covered under the Survivor Benefit Plan, discussed in another file available on this site.) Although this stringent rule may not be logical, it must be understodd that in this arena assumptions based on logic and consistency, and state law can be fatal.

2. Right created by law. The privileges granted are created by law. For several reasons it is important to understand this. First, government officials have no discretion to expand privileges. Bluntly stated, if the tests are not met, the privileges do not exist. Former spouses frequently ask me to prepare a request for them granting privileges when the cutoff dates have been missed by only a few weeks. Unfortunately, this would be a wasted effort.

Second, a member cannot grant or deny privileges or expand or reduce them. I have had several cases in which I was contacted by the non-member former spouse after an agreement was negotiated in which the member had extracted concessions in exchange for benefits. In other cases, the member used the withholding of benefits to threaten the non-member spouse.

Third, privileges are granted whether or not they are mentioned in the divorce documents, although a recitation of the dates of the marriage and career can sometimes facilitate the application process. In addition, unlike cases involving federarl civl servire employees, it is not necessary that the former spouse be granted a portion of the retirement in order to qualify for continuing privileges

Last, a member's cooperation is not needed to provide the benefits. If the non-member former spouse had an ID card before the divorce, the information necessary to identify the former spouse and complete a post-divorce ID card should be in the military computer system. Most personnel offices require the former spouse to provide a copy of a marriage license and the divorce decree.

3. Valuing medical benefits. Counsel for both the member and non-member will want to consider interjecting the value of the ID card benefits in the cases. Most judges have heard of the COBRA rules, but are surprised to learn of the possibility of continued coverage as long as the non-member does not remarry.

4. Attention to the time rules. If the member is still serving and the 20 year threshold has not been met, consideration should be given to delaying the dissolution of the marriage until the 20 year point has passed. Since the running of the time is not stopped until the marriage is dissolved, a legal separation will permit the time to run.

5. Military health benefits supplemental insurance. Non-member former spouses who will have medical care privileges should consider the advisability of supplemental insurance. Particularly in the case of inpatient care at a non-military hospital, the patient's co-pay amount can be large. There are scores of available plans, and some have only a six month waiting period for pre-existing conditions. These plans should be thoroughly evaluated especially in cases where Tricare Prime coverage has not been elected.

6. Members of the national guard and reserve. When the member serves in the guard or reserve, the time standards are met by the overlap of the marriage and the career based upon "good years" of service. Active duty service is not necessary to qualify for benefits. The passage of a chronological year may not mean that a "good year" was credited. It depends on the accumulation of sufficient points. One should analyze the member's chronological summary of service in order to determine if the time standard has been met.

In addition, if the member did not make a survivor benefit election when 20 good years have passed, death before the member becomes age 60 and applies for retirement will extinguish the right to benefits, even if there was a 20 year overlap.

Legislative action. From time to time, there are efforts to expand benefits for 20/20/15 spouse. As was pointed out above, for divorces before April 1, 1985, a four year renewable ID card for medical benefits is possible, but subsequent legislation reduced this benefit. Therefore, if the non-member former spouse falls within this category (or possibly could), research should be conducted to determine if legislation has been passed to expand benefits.

© 1997 Flying Solo™. All rights reserved. Legal Notices



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