Posts tagged with "military pension division"

Survivor Annuity Success

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.

THE BASICS

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.

THE BACKSTORY

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.

Supporting Our Military Families

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:

  1. A) Ensure that SBP is included in the divorce settlement.
  2. B) Be sure to comply with the statutory deadlines for SBP registration with the retired pay center.
  3. 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.

 

Just Released! THE MILITARY DIVORCE HANDBOOK (3rd Ed.)

The Military Divorce Handbook is now available in its Third Edition as of May 20, the American Bar Association announced.  This third version of the ABA best-seller is 40% larger than the Second Edition, with two volumes due to the significant increase in content.

What’s new in the book?  Just a few of the improved sections are:  

  • In Chapter 1 you’ll find an expanded section about rules and resources for getting documents from the government (e.g., pay records, retirement orders, VA rating, time in service and type of discharge) under the Freedom of Information Act and the Privacy Act.
  • Chapter 2 contains a new glossary of cases on the Servicemembers Civil Relief Act, a chart showing the new statutory sections for the Act since its codification by Congress in 2015, and new information on how to search the Defense Department’s on-line database for whether a party is serving in the military.
  • Chapter 3 includes a section-by-section analysis of the Uniform Deployed Parents Custody and Visitation Act (now the law in 14 jurisdictions), and an expanded section on international kidnaping remedies and the Hague Abduction Convention.
  • In Chapter 5 on “Domestic Abuse,” the reader will see new written resources and tools regarding domestic violence and the Family Advocacy Program, a section on Article 128b of the Uniform Code of Military Justice (making domestic violence a new criminal offence), and new information on representation for sexual assault victims and compensation for domestic-abuse victims.
  • A link to the Army JAG School’s Federal Income Tax Course is found at Chapter 7, along with guidance on tax-free allowances and their impact on the income of servicemembers.
  • In Chapter 8 on division of property and pensions, you will find entirely new sections on the Blended Retirement System (which took effect Jan. 1, 2019), the Supreme Court’s 2017 Howell decision as to VA payments and indemnification, new rules about the amendment to the Uniformed Services Former Spouses’ Protection Act which freezes the divisible pension on the date of divorce (the “Frozen Benefit Rule”), new resources for understanding military retired pay, and an expanded section on reduction in grade at retirement due to misconduct.

I hope you’ll find my book useful and easy to read.  I spent three years putting together this edition!

-Mark Sullivan