Post 911 GI Bill Benefits – Worth a Small Fortune
The Post 911 GI Bill is an awesome benefit for military members and their families. But it can also be a liability in a divorce – a GI Bill debt is created when the military member used the benefits, but did not then complete the time in service requirements.
First, the Post 911 GI Bill benefits – pursuant to 38 U.S. Code § 1313, eligible beneficiaries can receive over $170,000 (at the Colorado Springs rates) for the academic year starting in August 2021, broken down as follows:
- Tuition & Fees, for 4 years, currently a maximum of $26,042.81/yr. (Latest and historic rate tables available on the VA website)
- Monthly Stipend, of $1947/mo in Colorado Springs (the E-5 Basic Allowance for Housing at the with-dependents rate) for 36 months (Use the DoD BAH Calculator to find the current rate for your location)
- Books & Supplies Stipend, of up to $1000/yr for 4 years.
For more details on how the GI Bill benefits can affect a divorce, see our blog post on GI Bill and divorce. Or, read this post for details on how Colorado family law courts will treat GI Bill benefits as income for purposes of support or maintenance. The pluses of the GI Bill are undeniable. This post, however, is about the potential downside spouses may not think of – the massive Post 911 GI Bill debt which may be a liability in a divorce.
Transfer Post 911 Bill Benefits to Family Members
Post 911 GI Bill benefits are transferable to a member’s spouse or children (38 U.S. Code § 1319), as long as the member has fewer than 16 years of service at the time of the transfers, and at least:
- 10 years of service at the time of the transfer, or
- At least 6 years of service with an agreement to serve at least 4 more years.
Note that the transfer must be voluntary – a court in a divorce has no jurisdiction to require a member to transfer GI Bill benefits to a spouse or children, or to divide such benefits as marital property.
Repayment of GI Bill Benefits for Failure to Complete Service
When a member with 6-10 years of service transfers Post 911 GI Bill benefits to a spouse, the spouse may use them, even though the member has not yet served the additional 4 years of required service. This creates problems if the required service is not completed.
Per 18 U.S. Code § 3319(i)(2), when a member fails to complete the required 4 years, the Post GI Bill benefits paid are treated as an overpayment. And that means instead of being a benefit, the spouses have a GI Bill debt which must be paid back, and both the military member and the spouse who received benefits are on the hook:
“In the event of an overpayment of educational assistance with respect to a dependent to whom entitlement is transferred under this section, the dependent and the individual making the transfer shall be jointly and severally liable to the United States for the amount of the overpayment”18 U.S. Code § 3319(i)(1).
The problem is that the military does NOT add that 4 years to the member’s obligation – it’s up to the member to track. This can create a “gotcha” situation where a member with fewer than 10 years of service transfers benefits, then ETS’s (i.e. leaves the military) 3 years later, w/o serving the required 4 more years.
This is not a hypothetical concern – a recent Stars & Stripes article discussed how nearly 200 GI Bill beneficiaries had to repay the benefits received, and had stories of members who transferred the Post 911 GI Bill benefits to their spouses, then left the military fewer than 4 years later, only to learn they owed the VA back tens of thousands of dollars.
How to Handle Post 911 GI Bill Debt in a Divorce
Though a member and spouse may be jointly & severally liable for the GI Bill debt caused by the overpayment, that does NOT mean that the VA will go after each of them for half of the debt owing. Rather, joint & several liability means that each of them is responsible for up to the full amount owing, and the government can collect it from either spouse.
If the GI Bill overpayment and resulting debt happened prior to the divorce, it’s easy to address upon dissolution of marriage, just like any other debt. Similarly, if the spouses have reason to believe that the service requirements will not be met, and there will be a GI Bill debt, they can address that possibility at the time of divorce.
But life is rarely that simple. What happens when a member owing a 4-year obligation leaves the military after divorce, but before completing that 4 years? The result is a marital liability which was not addressed, so the decree would need to be reopened.
Post 9/11 GI Bill Debt Within 6 Months of Divorce
If the overpayment, and resulting GI Bill debt, becomes known within 182 days of the divorce decree (admittedly, this is probably not very likely), the former spouses can reopen the property settlement pursuant to Colo. R. Civ. P. 60(b)(1) in cases of “Mistake, inadvertence, surprise, or excusable neglect”.
Unallocated Debt Within 5 years of Divorce
Most of the time spouses will learn of the Post-9/11 GI Bill overpayment debt more than 182 days after a decree. In that case, there is a debt which was arguably omitted from their original disclosures, and the parties have five years to ask the Court to address the debt:
If a disclosure contains a misstatement or omission materially affecting the division of assets or liabilities, any party may file and the court shall consider and rule on a motion seeking to reallocate assets and liabilities based on such a misstatement or omission, provided that the motion is filed within 5 years of the final decree or judgment.Colo. R. Civ. P. 16.2(e)(10)
The takeaway? If you are drafting an agreement, even if there is no post-9/11 GI Bill, it’s a good idea to have a “catch-all” provision to address how to handle property or debt which may not be known, or is not divided, at the time of divorce. You don’t need to be real specific – a simple sentence like this will suffice: “The Court reserves jurisdiction to divide any marital property or debt not allocated herein.”
For more information on this topic, see our Post-9/11 GI Bill Benefits in a Divorce article in the Military Divorce Guide.
Award-Winning Post 911 GI Bill Family Law Firm in Colorado Springs
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