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Military Divorce and Post 9/11 GI Bill Benefits

One asset in military divorce 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.

The Post GI Bill is therefore a significant asset that can potentially benefit either spouse or their children.  Unlike leave pay and retirement pay, however, Post GI Bill Benefits may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce proceeding.  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.

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 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 a service member seeks to transfer the benefits, the service member typically must agree to serve four additional years of active duty service.  The transfer must also be made prior to the entry of a final judgment, as the transfer may only be made to a "spouse."  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. Thus, the final judgment 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.  The housing allowance is not available if the service member continues to receive the Basic Allowance for Housing (BAH).  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 no longer married only qualifies for one housing allowance.

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

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