Former spouses retain access to many types of military benefits after getting divorced (subject to varying conditions for different types of benefits). However, there are some exceptions, and ex-wives and ex-husbands who remarry can lose their eligibility to receive pension payments based on their former spouse’s military service.
As an active military officer, enlisted service member, or veteran, understanding the rules and regulations that apply to your military benefits after a divorce can be challenging. Not only are these rules and regulations complicated, but they have recently been changed, and different types of benefits are treated differently during and after the divorce process.
One area of particular confusion is military pensions. There are a few different types of military pensions, and these pensions are separate from military retirement pay. This article covers the basics. But if you have questions about your personal circumstances, we encourage you to contact us for a confidential consultation.
Understanding the Different Types of Military Pensions
Military pensions are offered through the U.S. Department of Defense (DOD) and the U.S. Veterans Administration (VA). The types of military pensions available to veterans and their spouses include:
- Legacy High-3 (High-36) Pension (DOD)
- Veterans Pension (VA)
- Survivors Pension (VA)
As mentioned above, these pensions are different from retirement pay under the Blended Retirement System (BRS) (although a High-36 pension is also commonly referred to as a form of “military retirement”). In addition to different eligibility qualifications, pension benefits are often tax-free, and they can receive different treatment in the event of a divorce or a former spouse’s remarriage.
So, in order to determine whether your ex-wife will be entitled to continue receiving pension benefits (or to begin receiving pension benefits upon your death) if she remarries, you first need to make sure you know which type of military pension (or retirement) you have. If you don’t know, in addition to reviewing your plan information or contacting your branch of the military, you can also review the eligibility criteria in order to determine which one(s) you satisfy. For example, the basic eligibility criteria for High-36 pensions, Veterans Pensions, and Survivors Pensions are:
- High 36 Pension – Joined the service by December 31, 2017 and served 20 years or more (the amount of your pension payments is determined by your years of service).
- Veterans Pension – Your annual income and net worth fall below certain thresholds; you served at least one day during wartime or served as an officer on active duty; and you are 65 or older, have a permanent and total disability, are living in a nursing home due to a disability, or receive Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI).
- Survivors Pension – Your annual income and net worth fall below certain thresholds and you served at least one day during wartime or served as an officer on active duty (in contrast to a Veterans Pension, which provides payments during your lifetime, a Survivors Pension only provides payment to your spouse or former spouse after your death).
DOD and VA Pension Benefits for Remarried Former Military Spouses
1. Legacy High-3 (High-36) Pension
As a general rule, High-36 pension payments to former military spouses terminate if the former spouse remarries. Note that this is different from the rule for payments under the Survivor Benefit Program (SBP), as the DOD explains:
“Your surviving spouse may remarry after age 55 and continue to receive SBP payments for life. If your surviving spouse remarries before age 55, SBP payments will stop, but may be resumed if the marriage later ends due to death or divorce.”
However, if your ex-wife’s second (or subsequent) marriage ends by annulment, divorce, or the death of her new spouse, then her eligibility to receive pension payments may resume.
2. Veterans Pension
The rules for former military spouses retaining Veterans Pension benefits after remarriage are not straightforward. In order to determine whether your ex-wife will be entitled to continue to receive benefits if she remarries, you will need to discuss your personal circumstances with an attorney. Factors that may be relevant include you and your former spouse’s age, income levels, and access to other government benefits.
3. Survivors Pension
As a general rule, a former military spouse who remarries is not eligible for Survivors Pension benefits from the VA. The VA’s website states:
“The Survivors Pension benefit, which may also be referred to as Death Pension, is a tax-free monetary benefit payable to a low-income, un-remarried surviving spouse and/or unmarried child(ren) of a deceased Veteran with wartime service.”
Similarly, FAQs provided by the VA Office of Survivors Assistance state that, “the law generally requires a surviving spouse’s entitlement to be terminated if the surviving spouse remarries, regardless of age, even if that remarriage is terminated by death or divorce.” A former military spouse can only reestablish eligibility for Survivors Pension payments if his or her subsequent marriage is terminated by annulment or declared void (or if it was terminated by death or divorce between 1971 and 1990).
Dealing with Military Pensions and Other Military-Specific Issues during the Divorce Process
While many aspects of dealing with military pensions, benefits, and other military-specific issues during the divorce process are governed by federal law, officers, enlisted service members, and veterans still have many important steps to take in order to protect their legal rights. If you are preparing to go through a military divorce in Tennessee, you should speak with an attorney to develop a plan for addressing issues including:
- Child custody and child support
- Division of your shared assets
- Military pay and alimony
- Issues specific to officers and enlisted service members who are on active duty or deployed
At Batson Nolan PLC, we are proud to serve military service members and veterans, and our attorneys bring decades of combined experience to helping our military clients protect their assets, income, and relationships with their children during the divorce process. For legal advice that is custom-tailored to your individual career and family circumstances, please contact us to arrange a confidential initial consultation.
Speak with a Military Divorce Lawyer at Batson Nolan PLC
If you have questions about what you can expect during or after your divorce as a military service member or veteran, we encourage you to get in touch. To speak with an attorney at our offices in Clarksville or Springfield, please call us or tell us how to reach you online today.