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After DOMA: Military Spousal Benefits

After DOMA: Military Spousal Benefits

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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.
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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Published by: Immigration Equality on Jun 27, 2013
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12/31/2013

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Tis series of fact sheets produced together by:
 American Civil Liberties Union | Center for American Progress | Family Equality Council | Freedom to Marry | Gay & Lesbian Advocates & DefendersHuman Rights Campaign | Immigration Equality | Lambda Legal | National Center for Lesbian Rights | National Gay and Lesbian Task Force | OutServe-SLDN.
MILITARY SPOUSAL BENEFITS
Service members receive only approximately 30% o their total compensation in the ormo base pay. Te remaining 70% o their compensation package comes in the orm o allowances, in-kind benets, and—in the case o retirees—deerred compensation. Forservice members who are married (or who have another qualied dependent), many o these allowances and benets are increased, to account or the reality that the servicemember is providing or a amily, instead o an individual. Tese increases are generous,and reect the unique strains and challenges placed on a amily with a member serving inthe military.
 Who is a military spouse?
For the active military, reserves, and National Guards, by statute a “spouse” is “a husbandor wie as the case may be.” Ten-Secretary o Deense Panetta said in a memo onFebruary 11, 2013, that:In the event that the Deense o Marriage Act is no longer applicable to the Departmento Deense, it will be the policy o the Department to construe the words “spouse” and“marriage” without regard to sexual orientation, and married couples, irrespective o sexual orientation, and their dependents, will be granted ull military benets. www.deense.gov/news/Same-SexBenetsMemo.pd  With the Supreme Court striking down DOMA as unconstitutional, it no longer appliesto the Department o Deense (DOD) and we can expect the DOD to issue a ormalstatement that it will construe the statute denition o spouse to be inclusive, as laid out inSecretary Panetta’s statement.
 Which marriages does the military consider valid?
Generally, the military will consider a marriage valid i it was valid in the state wherethe marriage took place. A state-issued marriage certicate is normally all the evidencenecessary to demonstrate that the marriage was considered valid by the state.Marriages entered into in oreign countries to oreign nationals generally must be approvedby the military service beorehand. I such a marriage is not approved beorehand, theservice member must obtain a “recognition o marriage” rom the military service. Ingeneral, no benets will result rom marriage entered into in a oreign country to a oreignnational unless it was pre-approved by the service or ratied aterwards. While a marriage may be valid according to state law, the military does not providebenets—or will seek restitution or benets already paid—or “sham” marriages enteredinto solely or the purposes o obtaining benets. Te military has aggressively prosecutedsuch cases in several instances.
Keep in Mind:
•
Te Supreme Court’s ruling in
Windsor 
applies only to the ederalgovernment. It does not change discriminatory state laws excluding same-sex couples rom state-conerred marriage rights.
•
Te ruling striking down DOMA will not be eective until 25 daysrom the decision. Even when eective, ederal agencies—largebureaucracies—may need and take some time to change orms,implement procedures, train personnel, and efciently incorporatesame-sex couples into the spousal-based system.
•
Until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses willreceive ederal marital-based protections nationwide. For ederalprograms that assess marital status based on the law o a state thatdoes not respect marriages o same-sex couples, those state laws will likely pose obstacles or legally married couples and surviving spouses in accessing ederal protections and responsibilities.
•
Securing air access to ederal protections that come with marriageor all same-sex couples in the nation will take some time and work.In some situations, it may require Congressional action or ormalrule-making by agencies.
•
Beore making a decision, it is essential that you consult an attorney or individualized legal advice. Tis is particularly important orpeople who are on certain public benets, as getting married may  jeopardize your eligibility without providing you the ull measureo protections other married couples enjoy. In addition, couples who travel to another place to marry and then return to live in a state that does not respect their marriage may be unairly unableto obtain a divorce, which can lead to serious negative legal andnancial consequences. People must make careul decisions whenand where to marry, even as we work together to end this injustice.
•
 We are committed to winning universal access to ederal maritalprotections or married same-sex couples through ongoing publicpolicy advocacy, and, where necessary, strategic litigation. Contactour organizations i you have questions, or updates and to learnmore about what you can do to achieve ull equality or those whoare LGB.Tis Guidance is intended to provide general inormation regarding major areas o ederal marriage-based rights and protections based onhow the various ederal agencies have administered ederal benets.
It should not be construed as legal advice or a legal opinion on any specifc acts or circumstances, and does not create an attorney-client relationship
. Past practice is no guarantee o uture developments. While laws and legal procedure are subject to requent change anddiering interpretations in the ordinary course, this is even more truenow as the ederal government dismantles DOMA and extends ederalprotections to same-sex couples. None o the organizations publishing this inormation can ensure the inormation is current or be responsibleor any use to which it is put.No tax advice is intended, and nothing therein should be used, andcannot be used, or the purpose o avoiding penalties under the InternalRevenue Code.Contact a qualied attorney in your state or legal advice about yourparticular situation.
The Supreme Court victory in
United States v. Windsor 
striking down the discriminatory ederal Deense o Marriage Act (DOMA) afrms that allloving and committed couples who are married deserve equal legal respect and treatment rom the ederal government. The demise o DOMAmarks a turning point in how the United States government treats the relationships o married same-sex couples or ederal programs that are linkedto being married. At the same time, a turning point is part o a longer journey, not the end o the road. There is much work ahead beore same-sexcouples living across the nation can enjoy all the same protections as their dierent-sex counterparts.

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