Military Spousal Benefits
Service members receive only approximately 30% of their total compensation in the form of base pay. The remaining 70% of their compensation package comes in the form of allowances, in-kind benefits, and—in the case of retirees—deferred compensation. For service members who are married (or who have another qualified dependent), many of these allowances and benefits are increased, to account for the reality that the service member is providing for a family, instead of an individual. These increases are generous, and reflect the unique strains and challenges placed on a family with a member serving in the military.
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For the active military, reserves, and National Guards, by statute a “spouse” is “a husband or wife as the case may be.” Then-Secretary of Defense Panetta said in a memo on February 11, 2013, that:
In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words “spouse” and “marriage” without regard to sexual orientation, and married couples, irrespective of sexual orientation, and their dependents, will be granted full military benefits.
With the Supreme Court striking down DOMA as unconstitutional, it no longer applies to the Department of Defense (DOD). On August 13, 2013, the DOD issued a formal statement and guidance that construe the statute definition of spouse to be inclusive, as laid out in Secretary Panetta’s statement.
Generally, the military will consider a marriage valid if it was valid in the state where the marriage took place. A state-issued marriage certificate is normally all the evidence necessary to demonstrate that the marriage was considered valid by the state.
Marriages entered into in foreign countries to foreign nationals generally must be approved by the military service beforehand. If such a marriage is not approved beforehand, the service member must obtain a “recognition of marriage” from the military service. In general, no benefits will result from marriage entered into in a foreign country to a foreign national unless it was pre-approved by the service or ratified afterwards.
While a marriage may be valid according to state law, the military does not provide benefits—or will seek restitution for benefits already paid—for “sham” marriages entered into solely for the purposes of obtaining benefits. The military has aggressively prosecuted such cases in several instances.
Because the military determines a marriage to be valid based on the law of the state where the marriage took place, it should not matter what state you lived in when you married, what state you move to after you marry, or where you are stationed around the world. Once your spouse is recognized by the military as your spouse, the laws of the state in which you live no longer play a role in whether you remain eligible for spousal benefits from the military.
Eligibility for all military spousal benefits flows from a spouse’s valid enrollment in the Defense Enrollment Eligibility Reporting System (DEERS). To add a spouse to DEERS, the service member must go to an ID Card office or DEERS office and present a valid marriage certificate, or in the case of a common law marriage, a determination from the Staff Judge Advocate (SJA) that the common law marriage is valid under state law.
For a list of documents required to add dependents to DEERS, please visit: http://www.dmdc.osd.mil/rsl/html/RequiredDocuments.html
Service members have a duty to report changes in their dependent status within 30 days. Under DOMA, marriages to a person of the same-sex did not have to be reported because the military could not recognize these marriages. Now that DOMA has been struck down, service members who are legally married under any states’ laws must report the marriage. It is unclear when the 30-day deadline for reporting will begin, but it is best to report as soon as possible.
Once a spouse is enrolled in DEERS, he or she is eligible for a whole host of benefits. The most important benefits to most service members and their spouses are:
- Spousal Identification Card
- TRICARE medical insurance coverage
- Dependent-rate housing allowance
- Family separation allowance
- Ability to move off base to live with a spouse
- Command-sponsored visas
- Access to military installations and facilities, including: base; commissaries; exchanges; Morale, Welfare and Recreation (MWR) centers; Family Center programs
- Joint Duty Assignments
- Access to legal assistance
While it does not flow directly from DEERS enrollment, the spouses of service members may also invoke the protections of the Servicemembers Civil Relief Act (SCRA), which provides certain protections from civil actions against service members who are called to Active Duty. For more information on the SCRA, visit https://www.dmdc.osd.mil/appj/scra/welcome.xhtml.
Couples who are married, regardless of whether you currently live in a state that recognizes your marriage, should proceed immediately to any DEERS office or ID Card office and report that you are married. You will need a copy of your marriage certificate.
Couples who are in state registered domestic partnerships or state civil unions, or couples who have no state legal status, have no mandatory requirement to report those relationships to the military.
On February 22, 2013, then-Secretary of Defense Panetta announced that certain benefits not blocked by DOMA would be made available to the same-sex domestic partners of service members. The benefits extension is scheduled to take effect between August 31, 2013 and October 1, 2013, with some news reports identifying the effective date as September 1, 2013. Any same-sex couple who meets the eligibility requirements can register as a domestic partner, regardless of whether the couple has any state-recognized relationship status. See http://www.defense.gov/news/Same-SexBenefitsMemo.pdf.
Recognition of a marriage provides many more benefits than the domestic partnership status established by DOD. A married couple will receive all the benefits that a domestic partnership couple would receive, but the domestic partnership couple will receive far fewer benefits than the married couple.
In the memorandum announcing the domestic partnership benefits extension, Secretary Panetta said “The benefits changes directed by this memorandum will be re-assessed” when DOMA no longer applies to the DOD “to determine whether other changes are needed or appropriate, to include whether unmarried same-sex domestic partnerships should be a basis for eligibility for benefits in the future.”
Now that DOMA has been struck down, it remains to be seen whether DOD will continue to implement the domestic partnership benefits extension, or require all benefits to be conferred through state-recognized marital status.
After DOMA Issue Areas
- Benefits and Protections for Civilian Federal Employees and their Spouses
- The Free Application for Federal Student Aid (FAFSA)
- Family and Medical Leave Act for Non-Federal Employees
- Federal Taxes
- Medicare Spousal Protections
- Military Spousal Benefits
- Private Employment Issues and Benefits
- Social Security Spousal and Family Protections
- Supplemental Security Income for Aged, Blind, and Disabled (SSI)
- Temporary Assistance for Needy Families (TANF)
- Veteran's Spousal Benefits