The following article is by Edwin C. Schilling III, Esq.

From 1987 until November 1989, I was the Assistant Staff Judge Advocate of the Air Force Accounting and Finance Center in Denver, Colorado. One of my responsibilities was acting as the approval/denial authority for over 6,000 cases under the Uniformed Services Former Spouses’ Protection Act (FSPA). (See 10 U.S.C. Section 1408.) In addition to possessing a working knowledge of the Act and regulation, the practitioner must assimilate a surprising amount of information about the military retired pay system to thoroughly protect a client’s rights. When I saw how few attorneys understood this legislation, I decided to retire and open a practice as a consultant.

In the course of dealing with members, former spouses and their attorneys, questions were frequently raised as to what military benefits, if any, the former spouse might be entitled to. The USFSPA, 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 USFSPA and subsequent amendments. The provisions on continued benefits are found in 10 U.S.C. §§1062 and 1072.

More and more, continued health benefits becomes an important if not driving factor, especially when the former spouse has a serious pre-existing condition. This article now summarizes the privileges granted and the criteria for entitlement to them, and gives some practice pointers. It is current as of June 18, 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.

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. Information can be obtained from CHCBP at 1-800-809-6119.

Practice Pointers:

1. Statutory right. The privileges granted are a matter of statutory right. There are several implications from this fact. First, there is no discretion given to any government official to expand privileges. If the tests are not met, the privileges do not exist. Period! Frequently former spouses ask me to prepare a request for them granting privileges when the cutoff dates have been missed by only a few weeks. There is no benefit from such an appeal.

A second implication is that 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 benefits to threaten the non-member spouse.

A third implication is that the 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.

A fourth implication is that the member’s cooperation is not needed to provide the benefits. If the non-member spouse had an ID card before the divorce, the information necessary to identify her and complete a post-divorce ID card should be in the military computer system. She will be required by most personnel offices to provide a copy of a marriage license and the divorce decree.

2. Effect of remarriage. Since medical benefits are permanently extinguished upon remarriage, it is imperative that non-member clients be advised of this rule. Practitioners frequently confuse the fact that remarriage may not affect the non-member’s right to a share of the retired pay as property to 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. See 10 U.S.C. §1450.) I have several cases in which the non-member spouse is considering a malpractice action because the attorney she asked if she could remarry did not warn about the loss of medical benefits.

3. Attention to the time standards. 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.

4. Valuing medical benefits. It is my understanding that some attorneys are interjecting the value of medical benefits into the dissolution process. Counsel for both the member and non-member will want to consider this in the appropriate situation. In my experience, 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.

5. Military health benefits supplemental insurance. Clients who will have medical care privileges should be counseled on 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.

6. Members of the national guard and reserve. Two related issues are important 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 a "good year" 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. Counsel should study 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 client falls within this category (or possible could), research should be conducted to determine if legislation has been passed to expand benefits.

Conclusion:

Whether representing the non-member spouse or the military member, an attorney should have a thorough understanding of which military benefits can continue after divorce. Careful planning and a discussion of the rules with the client can be critical in the preservation or loss of benefits.

SOURCE: DivorceNet