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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26329
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I plan on marrying an active duty soldier who will be about

Customer Question

I plan on marrying an active duty soldier who will be about a year from retiring by the time we marry. If his soon to be ex-wife waives her rights to his Retirement pay in their Settlement agreement what rights will I have to his Retirement pay if he predeceases me?
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.

Great question.

The answer actually has little to do with her waiving her rights. It is great for him (and you) if he will. But it is not required. At all.

Retirement pay ends on the death of the member. So if you marry and he dies, by law his pension ends. Period.

That said, there is an insurance program called SBP or survivor benefit plan. This insurance provides an annuity to the beneficiary in the event of the death of the member. The amount you get varies, up to 55% of his pension. The higher the percentage you pay to protect, the more you pay for the insurance.

In my opinion? It is expensive. I did not choose it for my family. If your spouse is in good medical health he can get the same protection at a much lower prices on the private market...and unlike SBP, you can modify private insurance..once you select SBP, after the first year you are stuck in it.

But to answer the question, can you get SBP? yes....so long as the court does not order it to her. If she waives her right to his pension, it would not make sense for the court to order he give her SBP.

He would have to sign up on his retirement and pay the premium out of his retired pay to name you.

You can read more about the costs of SBP here

http://www.military.com/benefits/survivor-benefits/sbp-spouse-cost-and-benefits.html

Let me know if you have more questions about this...happy to help if I can
Customer: replied 1 year ago.

Thanks for your assistance, it is greatly appreciated. It's not a given, at this time, if she is giving up part of his pension-she says she won't ask for it...if she did get part of his pension and he did NOT name her as beneficiary (SBP), when he dies her payments would end I guess. Very different than non-military divorces/pensions.

Expert:  P. Simmons replied 1 year ago.
Yes Ma'am, the system is unique. Congress sets benefits and it has been this way for many years.

So this really will come down to what they can agree on in the divorce. It may be that he agrees to give her a small portion of his pension by way of compromise (to get her to waive SBP and more of his pension)

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26329
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 12 months ago.

Hello, you had provided good information for me and now I need additional help. The man I am with, who is active duty, deployed in Afghanistan has not been able to retain an attorney to assist him with the divorce. Now his soon to be ex-wife wants part of his pension and as she is disabled expects alimony. He has asked me to help him retain an attorney, but I don't know what to do first. We had a recommendation but I can't get anyone to even call us back. He lives in Killeen, Texas and has been stationed at Fort Hood since 2006. He was served at the end of May, 2013, by process server and did not answer the Summons/Complaint.-he genuinely thought that his ex would not pursue his pension, etc and just thought that the divorce would be finalized. He deployed in July, 2013. Thank you in advance for your assistance. Susan

Expert:  P. Simmons replied 12 months ago.
Ma'am, not sure I understand your question? What is it you want to know? How to find an attorney in Texas?
Customer: replied 12 months ago.

Yes, that's part of it. Sorry. He needs someone to represent him in the divorce and as he is deployed I am not sure if I can retain a lawyer for him. I want to help facilitate things, internet use is limited and him being able to make calls is even more limited. Finding an attorney, a good one, someone who knows military law and who can protect his interests. He has asked me to help. I know that you are in Arizona I believe?) and I am assuming that you can't help/represent him.

Expert:  P. Simmons replied 12 months ago.
I am in AZ. He needs a lawyer from the state that the action is filed in. Can you tell me, what state is that in?
Customer: replied 12 months ago.

He lives in Killeen, TX as does his soon to be ex-wife. She filed.

Expert:  P. Simmons replied 12 months ago.
Thank you

If he is deployed he can take advantage of the provision of the Service Member Civil Relief Act (SCRA). This law allows the service member to request delay in a civil case when they are deployed. He can do this himself (no need to hire a lawyer). If he simply contacts JAG (there will be a JAG deployed with him) and they can help him.

Now....if he needs a lawyer, you can find one here

http://www.texasbar.com/AM/Template.cfm?Section=Do_You_Need_a_Lawyer_

But I would sure see if he can get JAG to help him delay this till he returns


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