Last week we received word from the Defense Department of a major victory in one of our cases. It involved the Survivor Benefit Plan.
EX-WIFE OBTAINS SURVIVOR BENEFIT PLAN PROTECTION-
-COURT ORDER FINALLY HONORED BY FEDERAL GOVERNMENT.
Federal law allows a former spouse to obtain Survivor Benefit Plan coverage in military divorce cases, but the application must be made within strict deadlines. If they’re missed, the benefit may be lost.
Our client, “Jane Doe,” married her husband in 1964 and the parties were divorced in 2004 in Minnesota. That’s a marriage of 40 years!
Before they were divorced. “John Doe” was determined to be mentally incompetent. We were hired by the parties’ adult daughter, “Susan,” who was the permanent guardian of her father.
The divorce judgment awarded the Survivor Benefit Plan protections (55% of husband’s retired pay for the rest of her life) to Jane Doe.
The problem was – no one was aware of the “deadline dilemma.” When SBP (the Survivor Benefit Plan) is ordered in a divorce case, the military member or retiree (here – John Doe) must apply to the government for coverage within a year of divorce. And the former spouse, Jane Doe, has to submit a deemed election document to the government within one year of the court order granting SBP to her.
Neither party knew anything about the deadlines and they were missed. Then in 2014 John died. Ordinarily, that’s the end of the case…
Not here, however!
Jane and her local attorney in Minnesota – a National Guard JAG officer whom I have known for 20 years – contacted us in 2015 to assist them in securing former-spouse SBP coverage. We then contacted Susan, the daughter and guardian of the deceased ex-husband.
We made an application to the Board for Correction of Naval Records (BCNR), requesting an administrative change in the military records of the former husband to show that he’d made the election of SBP “on time,” that is, within the statutory record window.
I signed the application memo on January 30, 2018. Just last week the BCNR had voted to approve our request for SBP coverage for our client.
“Susan” – the guardian – was overjoyed. The client was ecstatic. This means that we’ll be able to ensure that the client receives a benefit which equals 55% of the late ex-husband’s retired pay for the rest of her life.
And there will be a lump-sum back payment to Jane for what was due to her for the past 5 years.
And it’s increased by COLAs to account for inflation! Jane can live to be 102 and still receive payments for the survivor annuity.
THE BOTTOM LINE
Here are some practice tips for the lawyer or client not familiar with these rules and restrictions:
- A) Ensure that SBP is included in the divorce settlement.
- B) Be sure to comply with the statutory deadlines for SBP registration with the retired pay center.
- C) If they’re missed, apply to the appropriate Board for Correction of Military Records (10 U.S.C. 1552) to ask for correction of the military records to reflect SBP coverage.
There’s an expanded section on Board applications in my book, The Military Divorce Handbook (Am. Bar Assn., 3rd Ed. 2019). Go to Chapter 8 – it’s all there, with references to the statutes and the regulations. The appendices show examples of documents to file in support of an application.
–Mark E. Sullivan
The Military Divorce Handbook has sold almost 400 copies in 2 ½ months and will go into its second printing within the next 30 days! The revenues it has brought in for the ABA Family Law Section have helped make it possible to continue the good work that the Section does.