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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19221
Experience:  Lawyer and current JAG officer.
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My ex husband listed me on his SBP plan to receive his benefits.

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My ex husband listed me on his SBP plan to receive his benefits. This was a court order and he paid the premiums each month from his retirement check. We were married for a total of over 30 yrs but lived together 21. He was an alcoholic and altho I tried he would not quit. He passed away recently from alcoholic cardio problems and I am being told because he did not notify the military of our divorce (I did not know I had to re the SBP) that I am not going to get the monthly benefit. I will lose my home and practically everything else because I will be living on social security only.....I have sent a letter of appeal but does anyone ever win on these things...I am devastated
Customer: replied 4 years ago.
Relist: I prefer a second opinion.
I want a military lawyer expert to answer my question of 8.18.13
Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.

Unfortunately, when a person is divorced, the SBP is automatically taken away from the spouse. The only way that the SBP could legally be maintained is for the divorce court to order that the SBP be put in place AND the process actually has to be done by either the military member or the former spouse.

Now, this is where your attorney failed you, because they should have known that just having you named as the beneficiary in the court order is not enough. That process actually has to be completed through DFAS. The reason that the court order is not enough alone is because this is a Federal benefit and a state court can't force a federal entity to anything. The state court can issue the order and the federal agency has set up its process that must be followed to have you renamed to the SBP.

So, unfortunately, if your ex did not rename you to the SBP following the divorce and you didn't do it yourself through a "deemed election" then it is too late now. Your recourse will be to sue either your ex-husband's estate for not completing the process as he should and/or suing your divorce attorney for malpractice.
Allen M., Esq. and other Military Law Specialists are ready to help you
Customer: replied 4 years ago.

If I sue his estate I will be have to sue the insurance policy he left to my children and I do not want to do that. The divorce specifically said that we both agreed they would get that money. I had no idea that the military required that since he had my name and social on everything and he paid the premiums right up until he died. What becomes of that money that he paid in? I believe that he intended for me to have it thru implied consent since he continued paying. Since he and I remained friends I can not believe he did not want me to have it. Even as he was dying we spoke of his coming and staying with me during recovery. He was an alcoholic and died from it ...does the government send this paperwork to him or me? I never got anything. I was told I could appeal by a guy at Randolph AFB but that it would have to go to DC and would take 4 to 6 months...I will lose my home in that time and really do not know where I will go or what I will do now. Has anyone ever won on appeal? In 4 more yrs had he lived he would have had it paid up...thanks so much for your advice

The money in SBP disappears. Unfortunately, it was his responsibility to either ensure that when he divorced, the beneficiary was changed to children or it was properly changed, in this instance, to former spouse.

I can understand your not wanting to sue his insurance, but suing his estate is the option I have to give, because that's the one available.

I understand that this has harmed you and really do wish that I could tell you differently here, but that is the law in this matter. I've had to break this exact same terrible news to many former spouses that expected their ex-husband to deal with the matter because the divorce order said to. Well, that divorce order is to your husband, not the federal government. That means that your husband bore that legal responsibility and he didn't do it.

Now, with my clients, I know that the ex-husband won't do it or I simply don't wait around for them to, because there is a process called deemed election where you can do it. Your attorney should have explained that to you and it was malpractice for the attorney not to, so that is the only other recourse you have.

You can certainly appeal to the Randolph AFB and to DC, that appeal is all you can do. They may very well decide that, in this instance, you can get it. Your situation is slightly different than most. For you, he at least kept paying the premiums. That certainly does suggest that he intended for you to get it and then the court order explains why.

Most of these situations, the ex-husband stops paying and doesn't name the former spouse as the beneficiary, and those former spouses lose the appeal every time. You actually have been facts, but legally they could still come back and choose not to grant you the benefit.
Customer: replied 4 years ago.

Not what I wanted to hear but the truth I am sure. I wish I knew if anyone had ever won on an appeal. Also unfortunately the person who represented me was a lawyer friend of my son who teaches law at Charleston. If I sue her will it hurt her as an attorney? I really do not want to do that but if all else fails I might have will not win any points from my son Jonathan but he and other son will be fine with the money they will be getting. If I do sue her for malpractice and I hate the thought should I find a military lawyer to handle it?

Suing her likely won't hurt her as an attorney. She'd send the claim to her insurance carrier. Most attorneys continue practice after being sued, just like doctors.

A military lawyer really isn't necessary to sue her. A lawyer with some military law experience wouldn't hurt, but the concept is not the complex. It doesn't take a lot of research to understand what has to be done following a court order on the SBP. Any attorney that takes the 30 minutes to read up on it would understand...but so few do.
Customer: replied 4 years ago.

Thanks so much I wish I had you around when this was all being done! Please say a lil prayer for me and God bless you for the work you do!

I certainly will pray for a good resolution for you. As I said, your facts are actually more favorable than most that we see here.

Take care.