Intro

     To ensure that a former military spouse can receive their proper military benefits, multiple deadlines and requirements have to be met. Three important benefits include the former spouse’s Military Pension share, Survivor Benefit Plan (SBP), and Military Medical care.

Military Pension Division Orders

     A former spouse of a military service member is entitled to a share of the service members’ pension up until that service member’s death. The former spouse accesses their share of the military pension by filing a “military pension division order” (MPDO). There is no deadline for an MPDO, but an issue arises when the MPDO is not filed as quickly as possible: former spouses cannot receive back pay from the pension payments. This means that if it takes a former spouse one year to file their MPDO, they have lost one year of collecting their share of the service member’s pension they would otherwise be entitled to. This issue also gives rise to another issue. The general rule for filing MPDOs is “first in line, first in right.” This means that the former spouse must beat the next spouse to filing their MPDO, otherwise the next spouse can register and obtain their own share of the pension first. This results in a reduced share for the former spouse indefinitely. Lastly, when an MPDO is not filed in a timely fashion, this has the potential to create civil litigation issues that can cost you time, money, and peace of mind, potentially for an extended period of time. Alternatively, when an MPDO is filed by a former spouse in a timely fashion, especially before a new spouse files their own first, the risk of civil litigation issues arising is greatly reduced.

Direct Monthly Pension-Share Payments – The “10/10” Rule

      In most cases, direct pension-share payments from the U.S. government is preferable for former spouses. This helps avoid issues such as non-compliance, non-payment, and having to enforce pension payments from the servicemember in the future. To qualify for direct monthly pension-share payments, there must be:

  1. A minimum of 10 years of marriage.
  2. A minimum of 10 years of military service towards retirement.
  3. An overlap of 10 years between the marriage and military service.

If all three of these conditions are met, the former spouse is entitled to direct payments of their pension-share under the “10/10” rule.

The Survivor Benefit Plan – Timing is Key

     Although a former spouse’s pension share ends when the service member dies, military retirees are allowed to assign a SBP coverage to a former spouse so that they can continue collecting their share of the pension even after their death. Although the only real requirement is that the SBP election for the former spouse must be submitted within 1 year of the divorce decree, there are three additional steps the service member may take that will perfect the process:

  1. An SBP requirement is included in either a court order or separation agreement.
  2. The request for SBP benefits is properly made.
  3. The election for SBP benefits and appropriate paperwork are submitted to the USCG Pay and Personnel Center or Defense Finance Accounting Service (whichever is applicable to the particular service member’s branch of military). If the election was not done via court order, the election has to indicate: (1) whether it was done via voluntary written agreement with the service member post-divorce; and (2) whether the agreement was ever ratified, approved, or incorporated by the court.

     If the service member does not assign an SBP to their former spouse, all hope is not lost. The former spouse can still obtain the appropriate coverage by serving a written request, appropriate forms, and a certified copy of the appropriate court order within one year. However, the timing of an appropriate election of SBP benefits is key. If the service member retires and does not elect for SBP coverage for the former spouse at the time of their retirement, or decides to elect for SBP benefits for their new spouse and/or children instead of the former spouse, any subsequent SBP order is too late – the SBP election cannot be done after the military member’s retirement. The only exception to this would be a prior court order or court-approved agreement that provides for the former spouse’s SBP coverage. Thus, the date of retirement is a hard deadline for SBP coverage.

Military Medical Coverage – The “20/20/20” Spouse

     A former, un-remarried spouse of a service member is entitled to full medical benefits if 3 conditions are met:

  1.  The length of the marriage between the service member and former spouse was at least 20 years.
  2. The service member completed 20 years of military service, thus qualifying them for military retirement.
  3.  There was an overlap of marriage and military service spanning atleast 20 years.

     If all of these requirements are met, the former spouse is considered a “20/20/20” spouse in the eyes of the military and are entitled to full military medical coverage.

Conclusion

     The benefits available to former spouses of military service personnel come with strict deadlines and are difficult to navigate. The attorneys at Smith Strong, PLC can assist you in navigating through these deadlines and requirements.


     If you would like assistance in protecting and receiving your military benefits, please call one of our offices at 804-325-1245 (Richmond) or 757- 941-4298 (Williamsburg) to discuss your options.

Special Thanks to Brayden Meadows for his assistance with this article.

H. Van Smith
H. Van Smith
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