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What is a Military Wife Entitled to in a Georgia Divorce?

by Sharon Jackson  on April 12, 2021 under ,

Like civilian spouses, a military spouse may be entitled to benefits and alimony upon divorce. However, there are additional laws that apply to military divorce that can significantly affect what each spouse receives. 

Here are some of the more salient rules that impact a military divorce in Georgia.

Property Division: Military Spouse Retirement Benefits In Divorce

Many military benefits, including health coverage, military retirement, and pensions, are under the Uniform Services Former Spouse’s Protection Act (USFSPA). While this is a federal law, it gives state courts the authority to divide military benefits during divorce.

Georgia courts follow the principle of “equitable distribution,” meaning the divorcing couple’s property is divided according to what is equitable. This means it’s not necessarily a “50-50” split. 

Military retirement benefits are among the assets that are considered marital property and divisible upon divorce. Hence, when a military couple is divorcing in Georgia, it is up to the state court to divide the retirement benefits between the servicemember and their spouse.

How long does a military spouse have to be married to get retirement benefits after divorce?

There is no minimum length of marriage required for division of military retirement upon divorce. Many people mistakenly believe that the marriage has to last a minimum of 10 years before military retirement can be divided. This is a misconception.

The “10/10 rule” refers to whether or not the retirement pay to the non-military spouse will be made through the Defense Finance Accounting Service (DFAS). The 10/10 rule says that if the couple was married for a minimum of 10 years, during which the service member had at least 10 years of creditable service, the DFAS will directly pay the retirement benefits of the ex-spouse.

If a military couple does not meet the 10/10 rule, the retirement pay will not be enforced by DFAS and will have to be paid some other way. Typically, the servicemember himself/herself will have to make the monthly payments awarded by the state court to the ex-spouse.

If the retirement pay is enforced by the DFAS, there is a limit on how much the non-military ex-spouse may receive. DFAS payments to the ex-spouse are capped at 50 percent of the retirement pay. This limit climbs to 65 percent if it includes alimony and child support.

In the unlikely event that the state court awards more than 50 percent of the retirement pay to the non-military spouse, the military spouse would have to make up for the amount that the DFAS will not pay.

Non-Divisible Benefits: Continuing Eligibility for Tricare

Various military benefits are not considered divisible assets during divorce.

One is Tricare, the main health care program for servicemembers and their families. A non-military spouse’s Tricare benefits will last only until the divorce is final, unless the spouse meets the criteria for continuing benefits. These criteria are either the “20/20/20” rule or the “20/20/15” rule.

  • 20/20/20 rule -- The non-military spouse may keep their full Tricare benefits after the divorce if:
    • He/she was married to the servicemember for at least 20 years,
    • The servicemember served in the armed forces for at least 20 years, and
    • There was a 20-year overlap between these two periods.

Other benefits that may continue under the 20/20/20 rule include commissary and exchange benefits.

  • 20/20/15 rule -- The non-military spouse may keep their Tricare benefits for one year after the divorce if:
    • He/she was married to the servicemember for at least 20 years,
    • The servicemember served in the armed forces for at least 20 years, and
    • There was a 15-year overlap between these two periods.

Alimony in Georgia Military Divorce

When it comes to alimony or spousal support, two things have to be determined: whether one spouse is eligible to receive support, and how much that support should be.

Much like in a civilian divorce, a military spouse may be eligible for alimony if they need help providing for their own needs after the divorce and the other spouse has the ability to provide this support. In military divorces, alimony is only intended to help one spouse recover their ability to provide for themselves; lifetime alimony is rare, if not discouraged.

There is no one formula under Georgia law or military law to calculate spousal support. This has to be determined on a case-by-case basis, using many factors such as:

  • The earning ability of each party
  • The age, health, education, and work history of each party
  • The duration of the marriage
  • Each party’s contribution to the marriage, whether financially or through care and service
  • The standard of living during the marriage
  • The expected length of time needed by one spouse to gain secure employment after divorce.

Contact an Experienced Divorce Attorney

Apart from the entitlements above, military spouses also wonder about other benefits that may or may not be affected by divorce. Some, like the Thrift Savings Plan, are divisible during the divorce process, but others, like disability payments, are not.

To know the full extent of your rights and what you are entitled to during and after divorce, talk to a reliable military divorce lawyer. Attorney Sharon Jackson is highly trusted in Gwinnett County and throughout metro Atlanta for her experienced and competent legal guidance, helping military spouses obtain what they deserve. 

Call us today at (678) 909-4100 or use our online contact form.

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