The Post-9/11 GI Bill
The Post-9/11 GI Bill is an education benefit program for individuals who served on active duty after September 10, 2001. This is an important asset that is becoming a frequent topic of discussion in military divorces.
A. BENEFITS AND ELIGIBILITY
The Post-9/11 GI Bill provides financial assistance to obtain a degree at a public or private university, to attend a trade or flight school, for on-the-job training, for apprenticeships and tutorial assistance, for licensing fees (law license, cosmetology license, etc.), and to pay for certification tests (such as SAT, LSAT, etc.).
Generally, a service member may receive up to 36 months of benefits and is eligible for benefits for 15 years from his or her last period of active duty of at least 90 consecutive days. Benefits include payment for tuition, a monthly housing allowance, book stipend, and a one-time rural benefit payment.
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.
The reason that this benefit becomes significant in a divorce is that, if the service member meets the service requirements, this benefit may be transferred to a service member’s spouse or child. 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.
B. TREATMENT OF POST 9/11 GI BILL BENEFITS IN A DIVORCE PROCEEDING
Unlike leave and retirement pay, Post 9/11 GI Bill benefits are not treated as marital property subject to division in a divorce. 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 or as part of equitable distribution. This is because under the doctrine of "federal preemption," state courts do not have jurisdiction to divide federal benefits.
However, a skillful military divorce attorney will advise a client on how to use the Post 9/11 GI Bill benefits to settle a divorce, including the spouse’s alimony claim. Oftentimes, a dependent spouse is seeking 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. The transfer must also be made prior to the entry of a final judgment because the transfer may only be made to an existing “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. Thus, the Final Judgment or Divorce Decree should prohibit the service member from revoking the transfer and provide for payment of alimony or another remedy should the service member do so.
If you have questions about a military divorce, you should consult a military divorce attorney or family law attorney experienced in military divorce.