Around this time of year, child support obligations are ending due to emancipation based upon graduations from high school. However, while a parent’s legal child support obligation may be ending, high school graduation time often brings about important questions for our clients concerning the payment of their, or their children’s, college education. Specifically, questions usually arise for those who have a spouse, or a former spouse, affiliated with the United States military who also have received educational benefits available through the Post-9/11 GI Bill. The question we often get in this context is: Can a judge order my spouse/ex-spouse to pay for my or our child’s college expenses through their Post-9/11 GI Bill benefits?

Before we answer that question, it is important to understand that Post-9/11 GI Bill benefits are intended to be for the educational benefit of the servicemember to help pay for school or job training efforts. The federal laws governing Post-9/11 GI Bill benefits allow servicemembers to transfer their educational benefits to another person if certain qualifications are met. As of the writing of this blog, to transfer these benefits, the following requirements must be met:

• The servicemember must have completed at least 6 years of service on the date the transfer request is approved; 
• The servicemember must agree to add 4 more years of service to their military commitment; 
• The person receiving the educational benefit, must be currently in the Defense Enrollment Eligibility Reporting System (DEERS); and
• The transfer of benefits must be to a qualified dependent.

The first two requirements are easy enough to meet, but the last two requirements may not be as simple as one may think. This is because qualified dependents, in our divorce context here, are children and spouses, but NOT former spouses. Once your divorce has been finalized in court, you are then considered a “former spouse.”

Now that we know more about these benefits, let’s get back to the original question, “Can a judge order my spouse/ex to pay for my or our child’s college expenses through their Post-9/11 GI Bill benefits?” The answer is no. Federal laws regulating the Post-9/11 GI Bill benefits explicitly prohibit state courts from classifying these benefits as “marital property”, which prevents the benefits from being divided in a divorce action. Remember, the original intent of the educational benefit was for the servicemember to pay for their school or job training. Additionally, since these educational benefits are for the servicemember’s use, courts cannot order a transfer to a child. 

Having said that, nothing prohibits parties from negotiating an agreement to transfer the benefits to a spouse or a child. A court will not do it for you. It’s important to remember that if you are amidst a divorce and have negotiated the transfer of your spouse’s Post-9/11 GI Bill benefits for your use, this transfer should be approved and completed prior to the finalization of your divorce. Otherwise, you will not be able to take advantage of the benefits...remember the requirements for transfer we discussed earlier. You will also want to make sure to discuss other protective measures to include in your agreement to ensure your ability to access these benefits with your attorney.

If you have negotiated the transfer of your child’s use of your spouse/former spouse’s Post-9/11 GI Bill benefits, then you need to remember that before your child can use those benefits, they need to meet certain requirements before doing so. It's always a good idea to review the U.S. Department of Veteran Affairs website here for the most up to date information on what those requirements are and how to access the benefits after transfer.

At Morris Williams LLC - A Family Law Firm, we empower our clients to make the best decisions for their, and their children’s, futures. We can help you in negotiating an agreement related to Post-9/11 GI Bill benefits as part of a global settlement of your divorce. Contact us today to schedule a time to speak at admin@morriswilliamslaw.com or (757) 266-9425.