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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26883
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am currently married and my husband just retired USAF two

Resolved Question:

I am currently married and my husband just retired USAF two years ago. His ex wife was awarded SBP and did not file within the year required with DFAS. My husband has now listed me (Spouse) as the Survivor Benefit Plan Beneficiary. His ex-wife has now obtained an attorney for her percentage of retirement pay and is also asking that he change the SBP to Former Spouse. I am required to be notified when this change is made? Also do I need to consent?
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.

Thanks for the chance to help. I am an attorney with over 12 years military law experience.

 

 

I am sorry to have to bear bad news.

 

You do not need to consent...not if there is a court order in place ordering SBP to be assigned to the former spouse. Nor is notice required to you.

 

The military has requirements that a current spouse be notified and consent prior to declining SBP. This is ti ensure that a current spouse is not denied this property right.

 

However, if there is a court order awarding SBP to the former spouse, then the former spouse is entilted to the benefit...and notice/consent from the current spouse is not required. So you have no legal basis to appeal this. You do not have "standing" or the right to file an appeal.

 

I am sorry to have to bear bad news.

 

Your spouse can appeal this...but, frankly, if there is a court order that he nominate his former spouse for SBP, the former spouse can enforce that order. It is likely too late to appeal this, as it was part of the original decree of divorce.

 

 

 

 

 

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26883
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and other Military Law Specialists are ready to help you
Customer: replied 1 year ago.


Is there a one year deadline to file the court order by either parties to the DFAS? They were divorced in 2006 and did nto submit the paper work. Now she is requesting a new court order be obtained by her attorney with modifications since the 1 yr deadline passed. The USAF has verified that I am still listed as SBP.

Expert:  P. Simmons replied 1 year ago.

There is a DFAS requirement that change be made within one year of retirement.

 

But this will be a problem for him...he should have notified the military at the time of his retirement...it sounds like he failed to do so. So he will have to answer to the court for this and apply to DFAS to waive that requirement. If they will not waive, then he may be subject to penalty from the court for not following the court order.

 

The court can, for example, require him to pay for independent insurance to match what she would recive from DFAS.

Customer: replied 1 year ago.

confirming what you've said. I am not entitled to any our my spouses military benefits if deceased. No financial protection for current spouses, correct?

Expert:  P. Simmons replied 1 year ago.
Well...that depends on how this plays out

If DFAS will not allow him to change SBP (since the one year window has closed) they it is possible you remain on SBP.

Also, if he dies before you and his death is somehow related to his military service (say, for example, he has a disability from the VA and that contributes to his death)? Then you would be eligible for a pension from the VA.

And you keep your ID card, even if he dies first, so you get TRICARE and commissary/PX benefits.

Also, you would get his social security if he dies prior to you.

Customer: replied 1 year ago.


Thanks for your help and replies. I currently have my husband listed as 100% beneficiary for my $300,000 life policy and my retirement. I feel as if I am not covered as his current spouse. :(

Expert:  P. Simmons replied 1 year ago.
Yes ma'am.

You are covered now...up until DFAS changes SBP.

Frankly, I suspect that they may not do so...again, it was his responsibility to make the change. He did not...so it may be DFAS denies his request to change SBP.

If they do not grant his request? Then SBP remains for you and likely he will need to purchase additional insurance for his ex.

If they do grant his request? Then he could purchase insurance naming you...or, if you wanted, you could pay to insure his life.

So you will have options...depending on what DFAS does

Best of luck through this mess

Phil



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P. Simmons
P. Simmons
Military Lawyer
26883 Satisfied Customers
Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.