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Lawrence D. Gorin
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1513
Experience:  Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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former spouse benefits, Army National Guard. If remarry before

Customer Question

former spouse benefits, Army National Guard. If remarry before age 55, as former spouse, does spouse lose my eligibility for benefits, if I have a divorce decree (10 years ago) that says former husband agreed to 43%. My concern is the attorneys put it in the decree because that was the federal formula. Which would hold more weight, the federal statutes and regs governing the pensions of former spouse, or the divorce decree? The state divorce decree issued is Nebraska. Can husband argue the decree is less valid because under duress, the wife had history of violence against him, and totally NOT supportive of husband's military time. Told him he "couldn't to annual training", called his CO to say he couldn't come to annual training because she was pregnant. Incessantly insisted he leave the Guard before retirement, so prime candidate for most unsupportive spouse in military history. Former husband said Guard unit, upon meeting her considered her a disaster. former husband got very poor advice from his lawyer, who was willing to give up money just to not have to continue negotiation the out of court settlement. former husband told by his lawyer to go ahead and not fight putting it in the decree b/c it was a federal formula. Is there hope that if she remarries she has let go of her eligibility or will the divorce decree let her sail through?
Submitted: 4 years ago.
Category: Military Law
Expert:  Lawrence D. Gorin replied 4 years ago.
Answer to follow.


Edited by Lawrence D. Gorin on 7/30/2010 at 10:31 AM EST
Expert:  Lawrence D. Gorin replied 4 years ago.
ANSWER:
First, federal statutes and regs governing the pensions of former spouse hold more weight than the divorce decree. Indeed, a divorce decree issued by a state court cannot override federal law. If there is conflict or inconsistency, the federal law controls.

Next, if the divorce decree awarded the former spouse the right to receive 43% of the disposable retired pay to which the retiree would otherwise be entitled to receive, and this was done as part of the division of marital property incident to divorce, the former spouse’s right to receive the 43% will continue until the retiree’s death. In other words, so long as the retiree receive disposable retired pay, the former spouse gets 43%. of each monthly benefit amount. Period. And this is true whether the former spouse remarries or does not.

Next, military disposable retired pay ends upon the retiree’s death. Federal law makes no provision for a retiree’s disposable retired pay to continue to be paid to a surviving spouse or former spouse. However, to safeguard against the financial problems arising for a spouse or former spouse when the retiree dies (and disposable retired pay comes to an end), federal law has established a life insurance program known as the Survivor Benefit Plan (SBP).

Under the SBP, upon the death of the military retiree, a reduced amount (usually 55% of what the retiree had been receiving while alive) will be paid to the deceased retiree’s surviving spouse, if SBP coverage was “elected” by the retiree for the benefit of the surviving spouse. A surviving FORMER spouse of the retiree may also be entitled to “SBP surviving former spouse” benefits if the retiree elected to provide such coverage for the former spouse OR if the divorce court ORDERED the servicemember/retiree to elect such coverage (as is typically the case). If the divorce decree ordered the servicemember/retiree to elect former spouse SBP coverage and the servicemember/retiree does not voluntarily submit to DFAS the necessary paperwork to get it done, the former spouse may get it done nonetheless by submitted the paperwork for a “DEEMED ELECTION.”

Assuming SBP coverage has been elected in your case, and the former spouse has been designated a the beneficiary for such coverage, the former spouse’s SBP coverage will be SUSPENDED if the former spouse remarries before age 55. And in that event, the cost deductions from the retiree’s retired pay will be stopped. The former spouse's SBP coverage is considered suspended for as long as the former spouse's subsequent marriage remains in effect. If the subsequent, marriage is terminated by death, annulment, or divorce, the former spouse's eligibility is reinstated and SBP cost deductions would resume. But if the former spouse remarries at age 55 or thereafter, the remarriage at that point would have no effect on the former spouse’s SBP coverage (and the cost the retiree incurs for providing it). All of this is a matter of federal law, unaffected by anything said differently in your divorce decree.

The Survivor Benefit Plan (SBP) law is codified at 10 USC § 1448 et seq. Online at:
http://www4.law.cornell.edu/uscode/10/stApIIch73schII.html

http://www4.law.cornell.edu/uscode/10/usc_sec_10_00001450----000-.html

WEBSITES THAT MAY BE OF INTEREST....
http://www.military.com/benefits/legal-matters/usfpa-overview
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html
http://www.militarydivorceonline.com/usfspa.html
http://www.militarydivorceonline.com/usfspa_faq.html
http://www.dfas.mil/garnishment/military/uniformedservicesformerspouses.html
http://www.dfas.mil/militarypay/garnishment/fs-qa.html
http://www.dfas.mil/militarypay/garnishment/fsfact.html
http://www.military.com/benefits/military-pay/retired-pay/military-reserve-component-retirement-overview
http://usmilitary.about.com/od/guardandreserve/a/earlyretirement.htm
http://usmilitary.about.com/od/reserveretirmentpay/a/reserveretire.htm
http://retiredpay.com/retirement-planning/mil-pay/intro-to-reserve-component-retirement-calculation-and-valuation/
http://www.divorcenet.com/states/new_york/military_divorce_and_pensions
http://www.military.com/benefits/survivor-benefits/survivor-benefit-plan-explained
http://www.defenselink.mil/militarypay/survivor/sbp/01_overview.html

For an overview of military benefits for former spouses, see:
http://www.gordon.army.mil/mpd/RSO/fspa.htm

Short article on “Benefits of Former Spouses of Military Personnel”
http://www.divorcenet.com/states/nationwide/milart-02
“Silent Partner” Series from North Carolina State Bar: (MUST reading!)
http://www.nclamp.gov/s_milpens.pdf

http://www.nclamp.gov/s_soldiers.pdf
http://www.nclamp.gov/s_mpdspous.pdf
http://www.nclamp.gov/s_pension.pdf
http://www.nclamp.gov/s_wording.pdf

Everyday Errors in Military Divorce Cases --
http://www.abanet.org/family/military/militarydivorce_errors.pdf

How To Find A Military Divorce Attorney --
http://www.abanet.org/family/military/eagle_militarydivorceatty.doc

Higdon on Military Retirement Divorce
http://www.texasfamilylawinfo.com/docs/Higdon-Military_Retirement_Divorce.pdf

Retired and Annuitant Pay: Concurrent Retirement and Disability Pay (CRDP)
http://www.dfas.mil/rapay/disability/crscandcrdp.html

Treatment of Disability Pay in Military Divorce
http://www.womansdivorce.com/disability-pay.html

The “Silent Partner” series at the ABA website:
http://www.abanet.org/family/military/silent/mpd_scoutingterrain.pdf
http://www.abanet.org/family/military/silent/mpd_servicemember.pdf
http://www.abanet.org/family/military/silent/mpd_spouse.pdf
http://www.abanet.org/family/military/silent/pension_division.pdf
http://www.abanet.org/family/military/silent/mpd_crdp_crsc.pdf

http://www.dfas.mil/garnishment/retiredmilitary/speech8.pdf
http://www.dfas.mil/garnishment/military/uniformedservicesformerspouses.html
http://www.divorcesupport.com/divorce/Division-of-Military-and-Veteran-s-Disability-3095.html
http://www.military.com/benefits/legal-matters/usfpa-overview[/URL]
http://www.divorcenet.com/states/nationwide/the_disability_issue_in_the_distribution_of_military_retirement_benefits

Sorry if some of these websites are listed twice, or if any of them do not work.

===========================
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Edited by Lawrence D. Gorin on 7/30/2010 at 11:23 AM EST
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1513
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
Lawrence D. Gorin and other Military Law Specialists are ready to help you
Customer: replied 4 years ago.
Sorry for the delay, I've been traveling and first chance to get back online. Thanks for great response, I do have one question. My attorney is the one who said it did not matter if it was in the decree, but obviously it does and I was given incompetent and incorrect advice, because I would not have agreed to my former spouse having any of my pension. I don't have claim on her retirement, or stock options, which have since become quite value. I made it clear to my attorney I only agreed to what former spouse was entitled to under federal statute. My attorney found my former spouse intimidating and so unpleasant to deal with, she was offering to use her own money, to clear up another point, to just get the divorce agreement done. Is that even ethical? for an attorney to go out her own pocket to just get away from the hostility and total lack of cooperation and fairness on the part of my former spouse? Do I have any recourse based on the fact that I was getting incompetent legal advice from my attorney since she incorrectly advised me by ltelling me it didn't matter if it stayed in the divorce agreement drawn by my former spouse's attorney, my attorney said it was federal law so it did not matter to have in the decree? Clearly, she was unwilling to defend my interests. She was the legal expert, so I assumed she knew what she was doing. It would be different if my former spouse had been supportive, but she fought ever single day I spent in the military. I was under duress, as she was keeping my 3 children from me, and I can document that I was seeing a mental health counselor at the time to cope with her malicious behavior, parental alientation, and physical assaults on me. Do these durress factors play a part at all? Again, sorry for the delay, and I will be back to accept this just as soon as I get to a WI FI spot again.
Customer: replied 4 years ago.
I dont know when I will get access again over the next week, but while I have a bit of WI-FI Itime, I did not want to delay your payment. I appreciate your detailed and professional answer to date realize you have extensive expertise in this area for which I am very grateful.. Let me know if you want me to submit my questions from today as a new question, or, if still want to work with me on this, I believe I will get a JUST ANSAWER prompt for a "tip". Thanks again for making clear in few paragraphs what my attorney in 2001 could not do with hours and hours of time and enormous cost. Now that I have learned this, I want to do something to make sure other soldiers are completely aware of the whole picture, because obviously we cannot count on divorce attorneys to give it to us straight regarding military pensions and divorce decrees.
Expert:  Lawrence D. Gorin replied 4 years ago.
FURTHER ANSWER:
Until 1983, there was no federal statute that allowed state divorce courts to divide military retirement entitlements as part or a divorce proceeding and award a portion to the non-military spouse. But there was also no federal statute that BARRED the state divorce courts from doing so. Then, on June 26, 1981, the US Supreme Court put the matter to rest with the decision in McCarty v. McCarty, 453 US 210,XXXXX2728, 69 L Ed 2d 589 (1981). The Court held that state divorce courts did not have authority to treat military retirement interests as marital property assets subject to division incident to divorce.

McCarty:
http://scholar.google.com/scholar_case?case=14920915972975707923

The Court based its reasoning on the fact that there was no federal law allowing state divorce courts to do so. But the Court also said that if Congress were to enact a law allowing state courts to treat a spouse’s disposable retired pay entitlement as a marital property asset subject to division incident to divorce, in accord with the domestic relations laws of the particular state involved, it would be OK.

So 1983, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 USC § 1408, which provided the necessary federal statutory authorization that the Supreme Court said was lacking. Pursuant to the USFSPA law, state divorce court judges are authorized to treat federal military disposable retired pay (whether prospective or in actual “pay status”) as a marital property asset and to divide the asset between the military member and his spouse incident to dissolution of marriage.

USFSPA:
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html

The USFSPA law does not itself provide the non-military spouse with any automatic entitlement to a portion of the member's retired pay. Rather, the federal law simply authorizes the state courts to treat military disposable retired pay as a marital property asset, if the state chooses to do so. Further, the federal law provides no specific formula to be used by a state in dividing a military retirement entitlement incident to divorce, thus leaving it up to each state to develop its own methodology, rules and regulations.

The USFSPA also included a provision requiring the Dept of Defense, through the DFAS payroll office, to honor and implement state divorce court orders for the division of disposable retired pay, provided certain procedural requirements are met. If the procedural requirements are met DFAS would then send directly to the former spouse the share of disposable retired pay that was court-awarded to the former spouse.

Nebraska state divorce law. NRS § 42-366(8), (like that of most other states) mandates that divorce decrees include provisions making an “equitable division” of all pension plans, retirement plans, annuities, and other deferred compensation benefits owned by either party, whether vested or not vested, as part of the marital estate for purposes of the division of property at the time of dissolution. (Only exception would be if the parties agree to a different arrangement AND the court finds to be conscionable.)

In Kullbom v. Kullbom, 209 Neb. 145, 306 N.W.2d 844 (1981), the Nebraska Supreme Court determined that by virtue of § 42-366(8), "the law of this state now requires that pension plans and retirement plans shall be included as part of the marital estate for the purposes of the division of property ...."

And in Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994), the Nebraska Supreme Court made it clear a "military pension is included in the marital estate" and the divorce court is required to make an "equitable" division thereof unless the parties reach some other agreement that the court deems to be "conscionable."

In the Reichert case, the Nebraska Supreme Court also held that the appropriate method for dividing an entitlement to a military pension is to use formula that awards to the former spouse one-half (50%) of the portion of the pension that was "earned" during the years of marriage. In Reichert, husband was in the military for 24 years. Husband and wife were married for 13 of those years. The marital estate thus includes thirteen twenty-fourths of husband's military pension. One-half (50%) of 13/24 = .2708, which converts to 27.08%, which would then be the share of husband's disposable retired pay to which wife is equitably entitled.

In your case, you ultimately accepted a settlement agreement that award you ex-wife 43% of your disposable retired pay. This was probably based on the "formula" approach illustrated above The 43% represents one-half of the portion of the asset earned during the married. And treating the "marital portion" of the total asset as a JOINT PROPERTY ASSET (even though "titled" on only one spouse's name), ex-wife is equitably entitled to receive 50% of that portion, which in your case ends-up being 43%. So she gets 43% of each monthly benefit amount to which you are otherwise entitled to receive, and she gets her court-ordered share for so long as you continue to receive disposable retired pay.

There is one other problem with dividing military disposable retired pay incident to divorce. Specifically, when DFAS is involved in implementing the divorce court’s order dividing the pension and making payment making payments directly to the former spouse, it is limited to paying only the court-awarded percentage (such as 43%) of “DISPOSABLE retired pay” as that phrase is specifically defined in the applicable federal law. And “disposable retired pay” does not include any reductions or deductions of “retired pay” that result from the retiree qualifying for VA “disability compensation” and opting for the dollar-for-dollar trade-off, so as to received the dollars in the form of VA “disability compensation” rather than military “retired pay.”

Suppose husband is entitled to a monthly disposable retired pay benefit of $1,500 (with no reduction for VA disability compensation. Wife has been awarded 43%. So she get $645 per month, leaving husband with the remaining $855. But a couple of years after commencing to received the military pension, husband claims a disability and ends-up qualifying for a VA disability rating that would give him VA disability compensation of $600 per month. And to get the money in the form of VA disability compensation, he has to waive that amount ($600) from his military retired pay. So after reducing his military retired pay by $600, his total “DISPOSABLE” retired pay is now only $900. And DFAS then commences to send to ex-wife 43% of the $900 revised amount of disposable retired pay. And 43% of $900 is $387. Of course, husband still receives his $855 each month, being $600 in tax-free VA disability comp and the other $513 in disposable retired pay (being 57% of $900). Ex-wife is not happy. And neither is the judge.

So as to protect against this very typical occurrence, many divorce decrees and settlement agreements include a INDEMNIFICATION PROVISION. In sum, if the event husband causes a reduction in the amount of his military retired pay to occur because he waives retired pay in order to receive VA disability compensation, he will the commence making payments directly to ex-wife in an amount sufficient to indemnify her for the reduction of the portion of retired pay that she would otherwise be receiving. And I suspect that something like that is included in your divorce decree.

Finally, a spouse who has been awarded a share of JOINT property as part of a divorce proceeding does not forfeit that her court-awarded share simply due to remarriage. Although "termination upon remarriage" is often applied to an award of alimony or spousal support, it is rarely applied to the division and award of a JOINT property asset. In your case, awarding your ex-wife 43% of the military retirement (one-half of the JOINT portion of the asset) was no different than awarding her 43% of a of $10,000 bank account that existed at the time of divorce and was under your name alone. Simply because she remarries does not mean that she has to give it back.

==========================
Now, having said all of that, I do want you to understand that the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 USC § 1408, is a very controversial law, and there have been on-going efforts to repeal the statute of otherwise substantially limit its application. And the arguments against this law are certainly well-taken and worth listen to (and reading about).

Websites of interest:
http://www.youtube.com/watch?v=V_OKnK6Odvg
http://www.militarycorruption.com/soundoff3.htm
http://www.afjag.af.mil/shared/media/document/AFD-081204-033.pdf
http://www.angelfire.com/ca2/EXTORT/
http://www.veteranstoday.com/2008/02/15/attention-active-and-retired-us-military-personnel-video/
http://onerunningman.newsvine.com/_news/2008/06/22/1599122-repeal-the-uniform-services-former-spouses-protection-act-usfspa-
http://www.americanretirees.org/voxpop.htm
http://www.ulsg.org/index.php?option=com_content&task=view&id=8
http://www.americanretirees.org/horrors.htm
http://forums.military.com/eve/forums/a/tpc/f/110192933/m/147108634

So until and unless Congress sees fit to change the law, it remains on the books, regardless of its unfairness and manifest injustice it produces. And adding insult to injury is the fact that state divorce laws do not allow provide divorce court judges (some of whom I personally know are retired military and divorced themselves, and VERY unhappy with the USFSPA law) with the legal authority to retroactively correct or modify property division provisions of previously-rendered divorce decrees. If they could, they would. But such is simply not the existing law.

Frustrating and totally unacceptable to you? Absolutely. And you (and virtually all of my servicemember clients (active duty, reserves, retired, etc.) are well-justified share the same frustration. And, frankly, I too share the frustration, wishing as a lawyer that there was something more I could do for my clients. But unfortunately I am only a lawyer, not a law maker. And sometimes, as in your case, I have to be the bearer of bad news. I wish it were otherwise.

NOTE: I realize that this answer may not be entirely to your liking, and I regret being the bearer of information that you really don’t want to hear. But it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

===========================
Having answered your original question and now your follow-up question(s), it is appropriate for you to now click the green “ACCEPT” button, if you have not already done so, so that I may be paid for the answer and information provided. And I thank you in advance for doing so.
Expert:  Lawrence D. Gorin replied 4 years ago.
FURTHER CLARIFYING ANSWER re REMARRIAGE PRIOR TO AGE 55:

Background Information -- Military retired pay as a marital property asset
The right of a member of the armed services to receive "military retired pay" (whether presently existing or a future expectation) is nowadays treated by divorce courts in every state in the nation as a joint marital property asset, at least to the extent that the right to receive such retired pay was “earned” or acquired during the years of marriage.

When divorce occurs, and the military spouse's right to receive military retired pay (whether present or future) is treated as a joint marital property asset, federal law (the Uniformed Services Former Spouses' Protection Act -- USFSPA -- 10 USC § 1408) authorizes the state divorce court to award a portion of the “joint marital property asset” to the “non-military” spouse.

While the USFSPA law authorizes state divorce courts to treat a spouse’s right to receive military retired pay as a joint marital property asset and to “award” or “assign” a portion thereof to the non-military spouse, the USFSPA law does not itself provide or require any particular method or formula to be used in making the division, thus leaving it up to each state to develop its own methodology, rules and regulations.

If divorce occurs while a spouse is still on active duty, or has not yet otherwise become eligible to commence actual receipt of military retired pay, the division and award of the right to the future receipt of disposable retired pay is most frequently accomplished through the use of a “formula” award. The divorce judgment provision might read as follows:
----> “The former spouse is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is ______ months of marriage during the member’s creditable military service, divided by the member’s total number of months of creditable military service as of time of retirement.”

The numerator of the "coverture fraction" (usually being the total period of time from marriage to divorce or separation while the member was performing creditable military service) must be specified in the divorce judgment or marital settlement agreement, while the fraction's denominator (being the member’s total number of months of service creditable for military retirement eligibility), will be determined when the member separates from military service.

Using the foregoing formula, and assuming a marriage that lasted exactly 12 years or 144 months, with the member having served for 25 years (300 months) as of the time of retirement, the former spouse would be entitled to receive ½ x (144/300) = 24.00% of each monthly payment of disposable retired pay otherwise due and payable to the retiree.

When a state divorce court renders a judgment or decree (or order) that awards or assigns a portion of s military spouse’s right to receive military retired pay to the other (non-military) spouse, the judgment or decree (or order) thereby gives the non-military spouse a legal right to receive the court-awarded share from the military spouse, generally to be paid as a percentage or a fixed-dollar amount of each monthly payment of disposable retired pay when, as and if the military spouse commences actual receipt of such pay from the Dept. of Defense.

In sum, a personal money payment obligation is imposed on the military spouse that effectively gives the non-military spouse a legally enforceable right to look to the military spouse for payment of the court-awarded share of disposable retired pay for each month for which such retired pay becomes due and payable. Stated otherwise, the military retiree has no legal right to keep for himself the portion of military retired pay that was awarded or assigned to the former spouse by the terms of the parties’ divorce judgment, decree, order or marital property settlement agreement.

Payment of court-awarded share to former spouse by DFAS.
The USFSPA law includes a provision requiring the Dept. of Defense, through DFAS (Defense Finance & Accounting Service) (the military’s payroll agency), to honor and implement state divorce court orders for the division of disposable retired pay, provided certain procedural requirements detailed in the applicable federal laws and rules are met. In particular, DFAS may make direct payments of the court-awarded share of disposable retired pay to the retiree's former spouse only if the "10-10 Rule" is satisfied, meaning that the military retiree and the former spouse must have been married to each other for at least 10 years during which the military retiree performed at least 10 years of creditable military service. If the procedural requirements are met, DFAS will then send directly to the former spouse the share of disposable retired pay that was court-awarded to the former spouse.

To the extent a former spouse receives the court-awarded share of disposable retired pay by payments direct from DFAS, the military retiree is relieved and absolved of payment liability for the particular month involved. However, to the extent the former spouse does NOT receive the court-awarded share of disposable retired pay by payment direct from DFAS, and the court-awarded portion ends-up in the hands of the retiree spouse, the former spouse has a legal right to demand payment from the retiree spouse. In essence, the retiree spouse is not allowed to retain for himself “property” that legally belongs to his former spouse.

Survivor Benefit Plan - Coverage for former spouse.
Military retired pay terminates upon the death of the military retiree. Federal law makes no provision for payment of military retired pay to surviving spouse, or a surviving former spouse, of a military retiree. However, as a safeguard to protect against the financial problems arising for a spouse or former spouse when the retiree dies (and disposable retired pay comes to an end), federal law has established a life insurance program known as the Survivor Benefit Plan (SBP).

Under the SBP, upon the death of the military retiree, a reduced amount (usually 55% of what the retiree had been receiving while alive) will be paid to the deceased retiree’s surviving spouse, provided, however, that SBP coverage was “elected” by the retiree for the benefit of the retiree’s spouse or, in the case of divorce, for the benefit of the retiree’s former spouse. If the servicemember does not voluntarily elect to provide “surviving FORMER spouse” SBP coverage for a divorced spouse, federal law allows the state divorce court judge to order the servicemember/retiree to make such an election. If the court so orders and the military spouse does not complete the required legal paper need to provide the SBP coverage of the former spouse, the former spouse may nonetheless get it done by submitting to DFAS a request for a “deemed election” within the one-year time limit allowed for doing so.

Suspension of SBP former spouse coverage if remarriage occurs prior to age 55.
Assuming SBP coverage has been elected and the former spouse has been designated a the beneficiary for such coverage, the former spouse’s SBP coverage will be SUSPENDED if the former spouse remarries before age 55. And in that event, the cost deductions from the retiree’s retired pay will be stopped. The former spouse's SBP coverage is considered suspended for as long as the former spouse's subsequent marriage remains in effect. If the subsequent, marriage is terminated by death, annulment, or divorce, the former spouse's eligibility is reinstated and SBP cost deductions would resume. But if the former spouse remarries at age 55 or thereafter, the remarriage at that point would have no effect on the former spouse’s SBP coverage (and the cost the retiree incurs for providing it). All of this is a matter of federal law, unaffected by anything said differently in your divorce decree.

Further, just to be clean about this, the suspension of SBP coverage upon remarriage of a former spouse prior to age 55 applies ONLY to the former spouse and NOT to the military retiree spouse. In other words, the remarriage of the retiree spouse does NOT result in the suspension of retiree spouse’s obligation to continue to provide SBP coverage for the former spouse (and continuation of the obligation to maintain SBP coverage for the former spouse may preclude the retiree spouse from providing SBP coverage for the current spouse).

The Survivor Benefit Plan (SBP) law is codified at 10 USC § 1447 et seq. Online at:
http://www.law.cornell.edu/uscode/html/uscode10/usc_sup_01_10_10_A_20_II_30_73_40_II.html


Edited by Lawrence D. Gorin on 8/2/2010 at 9:00 PM EST
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1513
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
Lawrence D. Gorin and other Military Law Specialists are ready to help you
Customer: replied 4 years ago.

Mr. Gorin, your empathy is worth more than I can possibly express. The detailed history of statutory and case law was a like mini law school course and I cannot thank you enough. And please don't feel like you are the bearer of bad news, I have some time to adjust to it and only recently, since ex-wife remarried at age 49, had just had a glimmer of hope when I read the "remarriage under age 55" language on a Military.com. I understand now that my lawyer left the 43% of my Guard pension in the decree because it was NEBRASKA state law to include in the decree, not a federal law, as my divorce attorney erroneously explained. May I consult you again, as I have been considering coming out of retirement for a couple years and reactivating and hopefully I could get my percentage adjusted accordingly, for the new years of service of service/years of marriage ration? I would not reactivate if the 43% cannot be adjusted, since I would not want her having 43% of any additional service time. I will indeed be passing along these specifics you were so generous to provide to fellow veterans, and I'm guessing they would all thank you too.,

Expert:  Lawrence D. Gorin replied 4 years ago.

Thank you for you kind and generous words. Most appreciated!

If you are presently providing former spouse SBP coverage for you ex-wife and she has now remarried prior to age 55, you need to notice DFAS (if you have not already done so).

Here's an excerpt of the DFAS website:


What happens to my former spouse's SBP coverage if my former spouse remarries before age 55?
----> The SBP coverage is suspended and cost deductions from your retired pay are stopped if your former spouse becomes ineligible due to remarriage before age 55. The former spouse's SBP coverage is considered suspended for as long as your former spouse's subsequent marriage remains in effect. If the subsequent marriage is terminated by death, annulment, or divorce, your former spouse's eligibility is reinstated and SBP cost deductions resume.


Next, th/e use of a "formula award" by Nebraska divorce courts is the same as is generally used by just above every state in the nation, at least when the parties are unable or unwilling to agree to some other formulation. The "formula award" has some aspects that are not favorable to the military retiree, but it is simple and easy for judges (and lawyers) to understand. Thus, because it is slightly favorable to the non-military spouse, and because she knows that that is the approach that the divorce court judge will probably use in the parties are unable or unwilling to agree to a different approach, most wives simply see no reason to voluntarily agree to anything other than the "formula award" approach.

In your case, had you held your ground and simply declined to agree to any division of your right to receive military retired pay, your case would have gone before a judge for judicial decsion as a contested case (with a lot of attorney fees being incurred). And no doubt but that the judge would divided the retired pay entitlement using the formula award, thus giving ex-wife (in your case) 43% of the disposable retired pay. So don't feel too bad.

For more info re division of retired pay incident to divorce, see Col Mark Sullivan's SILENT PARENT article re The Servicemember's Strategy.

Finally, yes, if you have further questions you wish to direct my way, post them and begin with "FOR MR. GORIN...."
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