A topic that comes up often in military divorce is what to do with unused Post-9/11 GI Bill benefits. Can these benefits earned during the divorce be divided and allocated between the divorcing parties? Is the non-military spouse and/or the children entitled to some or all of the Post-9/11 GI Bill benefits earned by the service member?

The easy answer under federal law is no. A court cannot treat Post-9/11 GI Bill benefits as marital property and cannot divide them in a divorce action according to 28 U.S.C. 3020(f)(3). However, service member spouses should recognize that Post-9/11 GI Bill benefits can be a valuable negotiating tool in separation agreements between divorcing spouses. In other words, a court cannot force a service member to divide this “asset” but a service member can contract away this “asset” for either their ex-spouse or their children in exchange for some other benefit. For instance, the service member could negotiate for a reduction in spousal or child support or in exchange for some other marital asset.

Further, as divorcing parties in New Jersey know, or will soon realize as they start the process, New Jersey is one of the few states that obligate parents to pay for their children’s college education if they are able. For this reason, service members transferring their Post-9/11 GI Bill benefits to their children will likely be able to reduce both parent’s out-of-pocket cost towards their child’s college education if not eliminate it altogether.

If the divorcing couple wants to contract for such a transfer of benefits then it is important that the service member to transfer the benefit BEFORE the divorce. Transfers can only be made to spouses, not ex-spouses. Next, the settlement agreement should also contain a clause stating that the service member will not revoke the transferred benefit and it should provide for some sort of sanctions in the event he or she does.

If you or your spouse is a member of the military or a veteran and is considering a divorce, you should be represented by an attorney who is familiar with military issues and divorce law. Contact Kevin J. Murphy, Esq., a life-long military dependent, former active duty service member, Afghanistan and Iraq veteran and a currently serving reservist at 856.428.8334 or kmurphy@sjfamilylawyers.com for a consultation.