In “Jack and the Beanstalk” it is the “magic beans” that start the story. In “My Cousin Vinny,” the best line in cross-examination features “magic grits.” In military divorce cases, “magic words” are sometimes the answer.
There are several military pension division areas in which “magic words” or specific language can make the difference between success and defeat, between a happy client and a grievance (or worse!). One of the most important places to focus on language is in the paragraph in the pension division order which deals with the Survivor Benefit Plan. Attorneys who represent the non-military spouse or former spouse know that providing for this survivor annuity is an essential part of a property settlement.
Whether the pension-division text is found in the divorce decree, an incorporated settlement, or a separate consent order (often called a Military Pension Division Order, or MPDO), the attorney representing the spouse or the former spouse (FS) must be sure that specific requirements are set out clearly in order to secure SBP coverage. Without terms which anchor the SBP in the settlement, the retired pay center will deny the spouse or former spouse this substantial benefit, since the pension-share payments end when the servicemember or retiree dies. [Note: The retired pay center is DFAS, the Defense Finance and Accounting Service, for Army, Navy, Air Force and Reserve retirees; for those retiring from the Coast Guard or the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration, it is the Coast Guard Pay & Personnel Center.]
SBP is an income-continuation program, not strictly speaking a part of the pension. It allows the FS to continue receiving payments after the member’s death. The amount paid is 55% of the selected base amount. Payments constitute taxable income, and they increase annually with inflation through cost-of-living adjustments, or COLAs.
The basic language to be use – the “magic words,” if you wish – can be written quite simply into the instrument that divides the pension: “John Doe will immediately elect his wife, Jane Doe, for former-spouse Survivor Benefit Plan coverage.” It’s that simple!
Those who want to put a bit of frosting on the cake can use some additional language. Here are several add-ons to insert after the above sentence regarding SBP election:
- “He will elect SBP for her using his full retired pay as the base amount.” [Note: The base can be anything from full retired pay down to $300 a month; failure to specify the base results in a base amount of one’s full retired pay.]
- “He will make the election on DD Form 2656-1, will send a copy promptly to the retired pay center along with the divorce decree and any other order requiring former-spouse SBP coverage, and he will transmit a copy of these documents promptly to Jane Doe’s lawyer.” [Note: For members of the Reserves and National Guard, as well as their spouses, the forms need to be sent to that agency, not to the retired pay center; thus the Army Reserve office would be Human Resources Command at Ft. Knox, and the Air National Guard would be at Buckley AFB, Colorado.]
- “Jane Doe may submit a deemed election to secure her SBP coverage, using DD form 2656-10.”
The addresses to use are on the forms. The deadlines for submission of the necessary documents are one year from the divorce (for the member/retiree) and one year from the order requiring SBP coverage (for the former spouse.).
All of this (and more) can be found at “SBP – Choose It or Lose It” in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).
Mark E. Sullivan, COL, USA (Ret.)
Sullivan & Hilscher Family Law
