The Military Ten Year Myth Debunked
There are a lot of misconceptions when it comes to dealing with the military, and specifically with military divorce. As a non-military member myself, I totally understand. With all the abbreviations and various oddities of military life (that military service members seem to think makes perfect sense), it can be hard to figure out what’s going on.
Military divorce is, in most ways, identical to civilian divorce. You still follow the same basic procedure (either you get divorced in court, or you negotiate a separation agreement), and it’s all governed by the laws of the courts in the Commonwealth. Military attorneys (JAG attorneys) and military courts don’t come into play at all here. JAG attorneys are licensed to practice military law, not necessarily the law in the state in which they are stationed, and are not able to appear before judges in the Commonwealth. They do not handle divorce cases. Virginia law is still what’s relevant, so it’s not a question of military support guidelines (really, that’s mostly a farce) or any other guidelines that the military may or may not impose on its members.
I suspect (though I don’t know, because I’m not military or married to a military service member) that much of the misinformation related to military divorce, military entitlements, and divorce comes from the military itself.
Case in point: the military ten year myth.
What is the military ten year myth?
The ten year myth says that if you have not been married to a military service member for at least ten years, you have no entitlement to his retirement.
Is that true? If I haven’t been married for ten years, I don’t have any interest in his retirement?
Hey, I called it a myth, didn’t I? It’s not true! You have an entitlement to his military retirement no matter how long your marriage was, so long as the marriage and the military service occurred concurrently. Obviously, if you married him after he retired from the military, then you don’t earn a portion of his retirement; you must have been married to him during his active duty service.
It’s based on a formula; essentially, you are entitled to 50% of what was earned during your marriage. If he joined after the marriage, or continued working after the divorce, your entitlement may not be 50% overall of the entire pension, but a lesser portion of that amount.
But why would he tell me the ten year myth if it isn’t true?
I would have thought that would be obvious. In case you needed a reminder, though, he’s no longer a member of the same team as you. He’s not looking out for you. In fact, quite the opposite – he’s looking out for himself, and he’s probably pretty scared and upset to think that you will get a portion of what he has earned. (To him, it’s his; you haven’t earned any portion of it. That’s not how the law thinks, though.)
If he can tell you that enough times, he’s probably hoping he can get you to sign something that says you don’t receive your portion of the military retirement (in which case, you’d have waived it – a BIG mistake!). It’s all part of his strategy.
It’s also possible that he genuinely believes this, too.
In fact, I have a client right now whose father (retired military) told her about the ten year myth. She asked me whether he was right! So, considering that her father certainly has her best interests at heart, he STILL, for whatever reason, had this misconception.
That’s why it’s so important that you ask questions, and don’t assume that what you hear from him (or what you hear from anyone who gets their paychecks from the military) tells you.
What am I entitled to receive, as a military spouse?
Basically, you’re entitled to a portion of anything that was earned, purchased, or acquired during the marriage – including the military pension, the TSP account, if you’ve participated, and support based on his income (base pay and BAH). You can make elections for SBP coverage, too, in many cases.
Child and spousal support, it must be noted, will be calculated pursuant to Virginia’s rules, not the military guidelines.
What about health insurance? I’d like to keep my TriCare, and also my military ID – for commissary and exchange privileges.
Health insurance is trickier, and this is one way military cases differ from civilian cases.
If you’re a 20/20/20 spouse (meaning that you were married for twenty years, he served at least twenty years, and twenty years overlapped during your marriage and his service), you can keep your TriCare coverage and your military ID indefinitely, including access to commissary and exchange.
If not… Well, you can’t. At least, not forever.
If you’re 20/20/15 (meaning that you were married for twenty years, he served at least twenty years in the military, and somewhere between 15 and 19 of those years overlapped during your marriage and his military service), you can keep your TriCare coverage for one year only. That’s it. There’s no sliding scale; it doesn’t matter whether it’s fifteen years to the day, or you’re one day short of a twenty year marriage – if you don’t meet 20/20/20 status, 20/20/15 and one year of insurance coverage is all you can qualify for.
A silver lining? There’s nothing like that for civilians, they just end up without insurance as soon as the final divorce decree is entered.
Military divorce is, in many ways, exactly identical to civilian divorce. Just like in a non-military divorce, you earn an interest in your spouse’s retirement each day you’re married. There’s basically a formula, which entitles you to 50% of what was earned during the marriage. That may or may not be 50% of the retirement account overall, but it doesn’t matter whether you make it to ten years (military OR civilian) to determine your eligibility to receive your marital portion.
Does being married ten years make a difference at all?
Yes, it does – but in terms of your marital interest in the retirement. If you’ve been married more than ten years, you qualify to receive your portion of the retirement paid to you directly from DFAS.
What’s the alternative? If you’ve been married less than ten years, you’ll have to get your portion from your ex-husband, rather than DFAS. It’s a wrinkle, for sure, but it doesn’t impact your interest in his retirement.
For more information or to schedule a consultation with one of our attorneys, give our office a call at 757-425-5200.