Post-9/11 GI Bill Benefits in a Divorce

What is the Post-9/11 GI Bill?

The Veterans Educational Assistance Act of 2008, codified at 38 U.S. Code §3301, et seq, introduced the Post-9/11 GI Bill as a complete revamp of the traditional Montgomery GI Bill. Other than sharing the purpose of helping veterans attain their education, and a (similar) name, they really have nothing in common.

While the primary purpose is to help veterans after their military service, the GI Bill benefits are available to members still serving in the military, as well as family members.

GI Bill Benefits

The Post-9/11 GI Bill provides benefits for up to 36 months. 38 U.S. Code §3312(a).

• Tuition & Fees, per 38 U.S. Code §3313(c)(1)(A).  - the full in-state costs at a public school, or up to $24,477/yr at a private school (rate effective August 1, 2019).
• Monthly Stipend, equivalent to the E-5 Basic Allowance for Housing at the with-dependents rate (BAH-With), per 38 U.S. Code §3313(c)(1)(B)(i). The BAH is based upon the zip code where the college is located - typically about $1500 or so (in Colorado Springs, the 2019 rate is $1605/mo). See the BAH Calculator page for rates in other areas.
• Books & Supplies Stipend of $41.56 per credit hour, up to a maximum of $1000/yr for 24 credit hours, per 38 U.S. Code §3313(c)(1)(B)(iv).

Military members attending school while on active duty are entitled to the tuition payments and book stipend, but not the monthly stipend. 38 U.S. Code §3313(e).

This is an extremely valuable benefit - a veteran attending a private college in Colorado Springs, for example, can receive up to $159,688 in post-9/11 GI Bill benefits over 4  years, comprised of $97,908 for 4 years of tuition, $4000 for books & supplies, and $57,780 for 36 months of the monthly stipend.

GI Bill Benefits for Online and Part-Time Students

Students pursuing distance learning (online or correspondence) are entitled to the tuition assistance and book stipend, but only one-half of the monthly stipend. 38 U.S. Code §3313(c)(1)(B)(iii).

Part-time students are likewise entitled to the tuition assistance and book stipend, but only receive a prorated share of the monthly stipend. 38 U.S. Code §3813(c)(1)(B)

Active Duty & Veteran Eligibility for GI Bill Benefits

Active duty & veterans who meet the following criteria are eligible for full Post-9/11 GI Bill benefits:

• Active Duty. Complete 36 months of active duty and remain on active duty. 18 U.S. Code § 3311(b)(1).
• Veteran. Complete 36 months of active duty and be honorably discharged (including retirement and TDRL). 18 U.S. Code § 3311(b)(1).
• Disabled Veteran. Complete 30 days of active duty, and be discharged for a service-connected disability. 18 U.S. Code § 3311(b)(2).
• Purple Heart Recipient. Remains on active duty, or is honorably discharged. 18 U.S. Code § 3311(b)(10).

Partial GI Bill benefits are available to active duty and veterans with fewer months of active duty. 18 U.S. Code § 3311(b)(3)-(8) for the eligible categories, and 38 U.S. Code §3313(c)(2)-(7) for the specific amount of benefits.

Deadline for Using Benefits. Members discharged before January 1, 2013 must use their post-9/11 GI Bill benefits within 15 years of discharge, but there is no deadline for using them if discharged after that date. 38 U.S. Code §3321(a).

Can Post-9/11 GI Bill Benefits Be Transferred to Family Members?

Yes. An eligible member may transfer some or all educational benefits to a spouse or children. At the time of the election, the member must have at least 6 years of active duty, and agree to serve another 4 years. 18 U.S. Code § 3319(b), which means the election must be made while the member is still on active duty. Commencing July 12, 2019, the member must have fewer than 16 years of service at the time the transfer election is made.

The following family members are eligible to receive GI Bill benefits:

• Spouse. 18 U.S. Code §3319(c)(1). Because the spouse is treated the same as the military member, note two caveats:
  • If the member is still on active duty while the spouse is in college, the spouse is not entitled to the monthly stipend. 18 U.S. Code §3319(h)(2)(A).
  • If the member was discharged prior to January 1, 2013, the benefits must be used within 15 years of discharge. There is no such deadline for those discharged after that date. 38 U.S. Code §3321(a).
• Children. 18 U.S. Code §3319(c)(2).
  • Though the election may be made while the member has 6 years of service, a child may not commence using benefits until the member has served at least 10 years on active duty. 18 U.S. Code §3319(g)(2).
  • The child must use the benefits before the age of 26. 18 U.S. Code §3319(h)(5)(A).

Revocation of Transfer. The member may modify or revoke the transfer at any time. 18 U.S. Code §3319(f)(2).

Divorce or Marriage of Beneficiary. There is no automatic revocation upon the spouse’s divorce or remarriage, or a child’s marriage.

Death of Military Member. If the member/veteran dies, the beneficiary remains eligible to use the post-9/11 GI Bill benefits. 18 U.S. Code §3319(h)(4). Moreover, if the dependent has not used all of the benefits, the dependent himself/herself may transfer the benefits to another eligible dependent. 18 U.S. Code §3319(l).

Death of Family Member. Should the dependent die, the military member/veteran may transfer the benefits to another eligible dependent. 18 U.S. Code §3319(k).

Allocation of Post-9/11 GI Bill Benefits in a Divorce

A judge in a divorce may not treat Post-9/11 GI Bill benefits as marital property and allocate them between spouses: “Entitlement transferred under this section may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding.” 38 U.S. Code § 3319(f)(3).

However, this restriction does not preclude the member from voluntarily agreeing in a binding separation agreement to allocate the GI Bill benefits to the spouse.

Why would a member voluntarily give away $150K of benefits? A spouse receiving such benefits would need less maintenance. And once that spouse receives a degree, he/she will presumably earn more money, so that in turn would result in reduced maintenance or child support for the military member.

Note that such an election must be made prior to divorce - while the member may elect a spouse as beneficiary, there is no provision to elect a former spouse. However, as divorce does not disqualify a beneficiary, as long as the election is made prior to divorce, the former spouse remains eligible to use the benefits.

Alternatively, the parties may agree that the parties’ children will use the GI Bill benefits for their education, thereby saving them money they would otherwise need to pay. (Note, however, that in Colorado at least, a court is prohibited at divorce from ordering parents to pay for their children’s college, however that does not preclude the parties themselves from voluntarily agreeing to do so).

Are Post-9/11 GI Bill Benefits Treated as Income in a Colorado Divorce?

In Colorado, while the definition of income for purposes of child support or alimony is broad, neither the maintenance statute (C.R.S. 14-10-114(8)(c)) nor the child support statute (C.R.S. 14-10-115(5)(a)(I)) explicitly address whether GI Bill benefits count as income.

The monthly stipend is treated as income when calculating child support or alimony, but not the tuition assistance or book stipend. In re: Marriage of Tooker, 2019 COA 83, a retired veteran was receiving GI Bill benefits while attending college, specifically the tuition assistance, the book/supply stipend, and the monthly housing allowance.

Why exclude a $25,000/yr benefit? The court analogized to other employer-paid benefits, and found the determining factor is that such benefits do not count as income if they are earmarked for a specific purpose other than daily living needs. In order to count as income, the benefits “must be available for the individual’s discretionary use or to reduce daily living expenses.” ¶ 18.

“Because the tuition assistance benefit was not available to Mark for general living expenses and would in no discernable way assist him in paying maintenance or child support, we conclude that the district court properly excluded the tuition assistance benefit as gross income for purposes of calculating maintenance and child support.” ¶ 20.

For a complete discussion of Colorado’s treatment of income for purposes of maintenance or child support, see the Income - Definition & Expenses article in the Colorado Family Law Guide.

More Information About the Post-9/11 GI Bill

For more information about the post-9/11 GI Bill, see the Veterans Administration Post-9/11 GI Bill web site.

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