Imagine your client is the former spouse of a United States service member who has been a devoted homemaker and focused on raising the children and running the home. She has serious health issues, and now she is staring down a divorce. You speak to her of dividing the military retirement and getting survivor benefits, and she sadly looks up at you and says, ”But what I need now is to know I will be able to see my doctor and get my medications!” Your mind races . . . ”What can I do as her lawyer to help her? I feel so inadequate and unprepared to advise her!”
For divorced military spouses (i.e., those once married to a military sponsor), especially those of career officers and enlisted members, their dependency upon the military health care system is near absolute. In particular for previously stay-at-home military spouses, with their employment options at entry-level, they have few opportunities for employer provided health care. Private health insurance plans, even those under the Affordable Care Act, are simply too expensive. While military health care for family members of active duty, Reservists, or retirees is either free or at very low costs, now upon learning they may lose their health care coverage brings tears, severe anxiety, and panic. For many former military spouses, their having continued access to health care is just as important as dividing the military retirement and perfecting their former spouse survivor benefits.
Sadly, family law practitioners know little about military health care or how to ensure their clients can obtain coverage. Some foolishly think their client can remain covered after their divorce by not advising the Department of Defense (DoD) of their nondependent military status. Such ill-fated plans can result in prosecutions for federal entitlements fraud for both the military sponsor and the former military spouse. But, in most instances, the attorneys simply do not know where to look for assistance or, most importantly, fail to advise clients to act within the first 60 days of losing military health care coverage; thus, clients miss the golden window of opportunity for enrollment.
This article focuses on how family law practitioners can advise their clients and help them enter the gateways to a post-divorce health care option to every former military spouse who was previously covered under one of the Military Health Care Programs on the day prior to their divorce, dissolution, or annulment.
While reading this article, be certain to distinguish between the terms “military sponsor,” who is, or was, the person in uniform providing the benefit, and the “former (military) spouse,” who was the dependent of the military sponsor.
What Is Military Health Care?
Members of the Uniformed Services are provided access to health care as a benefit of their national service. The eight Uniformed Services are The U.S. Army, U.S. Navy, U.S. Air Force, U.S. Marine Corps, U.S. Coast Guard, U.S. Space Force, the Commissioned Corps of the U.S. Public Health Service (USPHS), and the Commissioned Corps of the National Oceanic and Atmospheric Administration (NOAA), including those in active service, their reserve components, and their retirees. They receive their health care and drug benefits through either Military Treatment Facilities (military hospitals and clinics) or through the Department of Defense Contractor for Health Care Services, commonly called TRICARE. There are multiple plans under TRICARE for active duty, reserve component, and retirees with each having different qualifying requirements, annual costs, deductibles, and copays. Pricing is complicated, but all of the TRICARE plans are far less expensive than private plans or even plans provided by employers. For most of those in active military service or retirees, they qualify for TRICARE Prime and TRICARE Select. Members of the reserve components qualify for TRICARE RESERVE SELECT. For military retirees age 65 and also entitled to MEDICARE, there is TRICARE FOR LIFE, which is a wrap-around MEDICARE Supplement that is free. Deciding which TRICARE Plan is best for someone is easy. TRICARE offers a step-by-step question-and-answer process to find the right plan for different qualified individuals. And if someone does not qualify for one of the TRICARE Plans, a former spouse can enroll in the Continued Health Care Benefit Program (CHCBP), which provides “COBRA type coverage” for those who have lost their TRICARE Coverage. CHCBP is not TRICARE but intends to provide the same level of coverage as TRICARE Select. The CHCBP is available to all former military spouses for 36 months if they were under any of the TRICARE programs on the day before they divorce; and, for some former military spouses it is available as long as it is requested and purchased.
20/20/20 and 20/20/15 Former Military Spouses
For certain long-term former military spouses of military sponsors (i.e., those married for at least 20 years and with at least 15 years of their marriage occurring while the sponsor was in active service earning retirement credits), congress provides near identical access to military health care coverage as for their military sponsors. Caution is given as the determination is considerably more complicated than just being married to someone in a military uniform for 20 years. There are other limitations, and formal determination process is much more than “bean counting.” Some of the other nuances and limitations are:
periods of marriage commence upon the date of legal marriage and run until the date of retirement or midnight of the date a final decree of divorce is entered (whichever is later); and does not include periods of engagement, cohabitating , or terminates upon any date other than the actual granting of a decree of divorce;
multiple marriages to different military sponsors may not be tacked together to satisfy the 20/20/20 or 20/20/15 requirement; however, multiple marriages to the same military sponsor may be considered for qualifying;
an otherwise qualified former military spouse will permanently lose their eligibility for TRICARE as a 20/20/20 or 20/20/15 un-remarried former military spouse if they ever remarry, even if it is with their prior military sponsor;
for years of “concurrent marriage and creditable military service,” what counts for a year depends upon whether the military sponsor eventually retires with a regular retirement (i.e., one based upon active-duty service for a least 20 years) or someone who is a Reservist/National Guardsman retiring with a non-regular (Reserve) retirement usually at age 60;
note there is a technical difference between an un-remarried and un-married former spouse (the latter being a former military spouse who remarried after divorce from the military sponsor and the subsequent marriage later ended by divorce, dissolution, annulment, or death of the subsequent spouse;
generally former military spouses of those retired for Medical Disability with less than 20 years of service under 10 USC Chapter 61 will not receive a favorable 20/20/20 or 20/20/15 un-remarried former military spouse determinations as will the former military spouses of those military sponsors retired under the Temporary Early Retirement Authority (TERA) because they were not retired for twenty years of longevity of military service; and
if the former military spouse also has employer-provided health care coverage, then TRICARE will not be available as long as they are covered by the employer provided plan. Often the solution to this barrier is for the former military spouse to drop the employer provided coverage and then enroll in TRICARE.
The gold standard is the 20/20/20 un-remarried former spouse, who upon divorcing the military sponsor never enters into another legal marriage. A 20/20/20 un-remarried Former Military Spouses is one who was: (1) married to the military sponsor for at least 20 years; (2) the sponsor accumulated at least 20 years of creditable service for a military retirement; and (3) at least 20 of the marriage years were concurrent with creditable service time for retirement for longevity. A common source of confusion occurs for former spouses married for 20 or more years to a senior officer or enlisted member in the Reserves or National Guard, who later retire with a regular retirement instead of the assumed reserve retirement generally not received until age 60. In such situations the former spouse may indeed have 20 or more years of marriage concurrent with creditable service for a “reserve retirement,” but does not for the “regular retirement” because less than 7,300 of the active-duty points for the regular retirement were earned outside of the coverture period of their marriage. Had the military sponsor elected to retire with a “reserve retirement”, the former military spouse would qualify as a 20/20/20 un-remarried former spouse; however, because the sponsor elected to retire with a “regular retirement” and less than 7,300 Active-Duty Points were earned during the coverture period of marriage, the former military spouse does not satisfy the 20/20/20 Rule. In such cases the former military spouse should always go to the nearest RAPIDS office and seek a formal determination from the sponsor’s Military Department concerning their eligibility for 20/20/20 former spouse status. Unfortunately, the Military Departments will not provide advisory opinions of former military spouses’ 20/20/20 status until they have a divorce entered. So many former military spouses are left guessing about their TRICARE coverage when they divorce.
For former military spouses who were married less than 20 years but for 15 or more years, Congress provided for TRICARE coverage, but only for one year after the divorce. For those who meet the 20/20/20 and 20/20/15 requirements, they have the same health care benefits as do their military sponsors except there are no TRICARE Dental Care. For the 20/20/20 and 20/20/15 un-remarried former military spouses, the period of TRICARE coverage starts at midnight following the date of the divorce; and, for 20/20/15 un-remarried former spouses their coverage ends on the first anniversary of the divorce. Remember, the 20/20/15 un-remarried former spouse receives only one year of TRICARE post-divorce coverage, but they may then transition into CHCBP Coverage.
Who decides if a former military spouse qualifies for post-divorce TRICARE Coverage? The gateway into the Department of Defense’s Health Care network starts with being placed into the Defense Eligibility and Enrollment Records System, or D.E.E.R.S. The D.E.E.R.S. is only a data base system of persons eligible for DoD. benefits. D.E.E.R.S. does not decide who is eligible. The “eligibility issue” is decided by each Military Department using a common set of criteria found in an Inter-Service Instruction known as AFI 36-3026, issued 4 Aug 2017. (Chapter 3 addresses Former Military Spouses.) Each Service has a central 20/20/20 Former Spouse Determination Team who review and decide upon applicants. The journey into the D.E.E.R.S. gateway begins at the nearest RAPIDS location, which can issue the former military spouse a new Military ID Card. The Former Spouse Military ID Card will not show the military sponsor’s information but will reflect for “Sponsor” the acronym “USFSPA” (Uniformed Services Former Spouse Protection Act) and their own personal identifier. The RAPIDS office only serves as an intermediary to transmit to the appropriate office for each of the Uniformed Services the Former Spouse Determination Package for an actual decision. When making your appointment, you should advise you are seeking a 20/20/20 Former Spouse Determination and inquire as to what you should bring with you. You may be asked to bring a combination from the following:
- Your last dependent military ID card, or a photocopy of the front and back;
- Certified copy of your birth certificate;
- Your Social Security Card;
- A certified copy of marriage certificate;
- A certified copy of divorce decree;
- The former military sponsor’s DD Form 214 (Discharge Certificate from Armed Forces;
- Your state driver’s license;
- Your current U.S. Passport;
- Your former Military Sponsor’s Social Security Number, full name, date of birth, military component, rank, or paygrade;
- If the military sponsor was a Reservist/National Guard member, bring a copy of his/her Reserve Point Summary Sheet (PCARS) showing a transcript of their years of service and Reserve Retirement Points earned during the marriage; and,
- A notarized statement that:
You have not remarried, and
That you are not covered by an employer provided health insurance plan.
The RAPIDS office may provide you additional instructions or request additional documents.
Once the former spouse receives their 20/20/20 or 20/20/15 un-remarried former spouse Determination Letter, the same RAPIDS office may then process the former military spouse for their Former Spouse Military ID Card. The Former Spouse may then go online and enroll in the TRICARE Plan of their choice. All TRICARE coverage is retroactive to the date of their divorce, and claims may be submitted for any interim medical and drug expenses. If the former military spouse is doubtful of satisfying the 20/20/15 test, they may wish to concurrently enroll in CHCBP as it has a 60-day enrollment period that starts upon the date of divorce.
It is most regrettable for a former military spouse to miss the 60-day CHCBP enrollment window only to find out later they will not qualify for TRICARE as a 10/20/20 or 20/20/15 un-remarried former spouse. In such cases if they are successful in qualifying for 20/20/20 or 20/20/15 coverage, they should apply for a refund of their CHCBP first quarterly premiums because they may not be covered under CHCBP if they were also eligible for TRICARE coverage. Any claims that CHCBP have paid during the first quarter of coverage should be filed with TRICARE as it offers retroactive coverage. Another tactic is to immediately upon divorce, start the Former Spouse Determination process with RAPIDS and try to become qualified within the 60-day window after the divorce. If the 60-day window is closing, then apply for CHCBP coverage as CHCBP is also retroactive to the date of the divorce.
The Continued Health Care Benefits Program
Congress intended the Continued Health Care Benefits Program (CHCBP) to provide only transitional health care coverage. It provides health insurance equivalent to TRICARE SELECT. Any former military spouse covered under a TRICARE Plan on the day before their divorce became final may be eligible for transitional CHCBP coverage for up to 36 months after the divorce. This would include a 20/20/15 Former Military Spouse who lost his or her TRICARE coverage upon the first anniversary of their divorce. There is a long-term option (i.e., beyond 36 months) referred to as Extended CHCBP for certain former military spouses meeting at least one of the following criteria:
is receiving a portion of the retired or retainer pay of a member, or former member, or a Survivor Benefit Plan annuity from the military sponsor; or
has a court order for payment of any portion of the military sponsor’s retired or retainer pay; or
has a written agreement (whether voluntary or pursuant to a court order), which provides for an election by the military member or former member to provide of military retirement or a Survivor Annuity to the former military spouse.
Enrollment must be within 60 days after losing their TRICARE coverage. Enrollment is simple and requires the former military spouse to complete and submit a DD Form 2837. The DD Form 2837 and instructions on where to send the form are at humanamilitary.com. A former military spouse will not need a Former Spouse Military ID Card or visit the RAPIDS office. If enrollment is approved, Humana Military will issue the former military spouse a Humana Military CHCBP Insurance Card for presentation when health care services are needed. When enrolling in CHCBP, remember that your children with the military sponsor will be covered under his or her TRICARE and they should not be covered under your CHCBP.
Accept the fact that CHCBP is not “inexpensive” as compared to the TRICARE Plans. But it is less expensive than other alternatives, especially having no insurance. For 2022 the quarterly premium cost for CHCBP was $1654 (i.e., about $551.33 per month). CHCBP costs are indexed to the National Health Insurance Index (NHII) and not to the Consumer Price Index (CPI) for Cost of Living Adjustments that Military Retirees receive. Premiums are subject to annual adjustments on October 1 of every year. Miss a quarterly payment and you are O-U-T of CHCBP!
Practical Guidance for Family Law Practitioners
Knowing the rules of DoD Health Care eligibility can make you a more effective advocate and negotiator for your client. You may consider delaying the initiation or finalizing of a divorce action so as to allow a client to qualify for 20/20/20 or 20/20/15 status. Be sure not to negotiate for alimony instead of a division of military retirement, or at least obtain a minimal Survivor Benefit award so as to qualify a former military spouse for Extended CHCBP coverage. In cases where the client is borderline or doubtfully a 20/20/20 former military spouse, advise them to concurrently enroll in CHCBP within the first 60 days after the divorce. Although CHCBP is a more expensive health care option than TRICARE, it is still cost beneficial to a former military spouse and does not require a change in doctors or how they obtain their medications. Consider using the higher cost of CHCBP in a demand for permanent alimony award because of the disparate costs for former military spouse coverage over that of the military sponsor. Ultimately anything that lessens the anxiety for a former military spouse is a “good results” for a family law practitioner zealously and competently representing their client.
William J. Camp, TRICARE and Continued Health Care Benefits Program (CHCBP), Family Law Quarterly, Vol. 43, No. 2 (Summer 2009) p. 227–300
Military Medical Coverage (Law Offices of Mark E. Sullivan, P.A.)