Tampa Military Divorce Mediator

Friday, February 22, 2013

Military Divorce and Post 9/11 GI Bill Benefits

Everyone knows that a divorce typically involves dividing your marital assets.  In a military divorce, those assets frequently include the service member spouse’s military benefits, such as the right to military retirement pay, healthcare for the children, and even the value of the member spouse’s leave days accrued during the marriage.

One asset that is becoming a more frequent topic of discussion is the member spouse’s benefits under the Post 9/11 GI Bill.  This program provides up to 36 months of educational benefits, which may be used up to 15 years after the service member’s discharge from active duty.  If the service member meets the service requirements, this benefit may be transferred to a service member’s spouse or children.  See 38 U.S.C. § 3020.  The transfer can even be made online.

The Post 9/11 GI Bill is therefore a significant asset that can potentially benefit either spouse or their children.  Unlike leave pay and retirement pay, however, Post 9/11 GI Bill Benefits may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.  See 38 U.S.C. § 3020(f)(3).  In other words, a military spouse cannot ask the court to award a service member’s Post 9/11 GI Bill benefits as an asset in a divorce.  The Post 9/11 GI Bill benefits simply cannot be included in equitable distribution.

A skillful military divorce attorney, however, will advise their client on how the Post 9/11 GI Bill benefits may be used to settle the divorce, including the spouse’s alimony claim.  Many times, a dependent spouse is seeking alimony in connection with the divorce, which may include a request for rehabilitative alimony.  As part of a marital settlement agreement, the service member may agree to transfer all or part of the service member’s educational benefits under the Post 9/11 GI Bill in exchange for a waiver of alimony.  If the service member seeks to transfer the benefits, the service member typically must agree to serve four additional years of active duty service.  See DoD Transferability Fact Sheet.  The transfer must also be made prior to the entry of a final judgment, as the transfer may only be made to a “spouse.”  A subsequent divorce, however, does not affect a transfer that has already occurred.  Both sides should be aware that, as a matter of federal law, the service member may revoke the transfer at any time while still serving on active duty or as a member of the Selected Reserve.  See 38 U.S.C. § 3020(f)(2).  Thus, the Final Judgment or Divorce Decree should prohibit the Service Member from revoking the transfer and provide for indemnification, payment of alimony, or another remedy should the service member do so.

If the service member transfers the benefit, the Post 9/11 GI Bill will provide tuition assistance for the recipient spouse, and subject to certain exceptions, it may also include a housing allowance, book stipend, and other benefits.  See Summary of Benefits.  The monthly housing allowance is equivalent to the Basic Allowance for Housing (BAH) for an E-5 with dependents, based on the ZIP code of the school where the student is physically enrolled (in Tampa, this is $1,662 per month).  You can check the BAH rate for any school using the Department of Defense BAH Calculator.  The housing allowance is not available if the service member continues to receive the Basic Allowance for Housing.  Notably, if the Post 9/11 GI Bill is transferred to a child, the child could receive the housing allowance and book stipend, even if the parent service member is still on active duty and receiving the Basic Allowance for Housing.  The apparent rationale is that a couple – even if they are no longer married – only qualifies for one housing allowance.

If you have questions about a military divorce, you should consult a military divorce attorney or family law attorney experienced in military divorce.