One of the many benefits given to military members and their families is a Survivor Benefit Plan. However, it is common to become concerned as to how this insurance is classified in a divorce, if it is divisible, or is the spouse may still retain the benefits from the account. A Survivor Benefit Plan can be extremely valuable and therefore should be considered and discussed in your divorce action. Ensure when you are going through a divorce with a military spouse that your rights are protected by an experienced divorce attorney.
Generally described, a Survivor Benefit Plan is similar to an insurance policy. The military member, with government aid, pays premiums to ensure after their death, their retirement will continue to be paid to an elected beneficiary. Without this benefit, the retirement payments earned by the military member would end upon their death, leaving money they earned in the hands of the government. The amount of benefits paid to a beneficiary is a max of 55% of the military member’s gross pay but no less than $300. This plan can be crucial to the financial assistance of a current or former spouse and therefore, must be addressed in any military divorce proceeding.
Although under Florida law a former spouse is generally cut off from receiving any death benefits or payments upon the death of former spouse, Federal law provides some exceptions in regards to a military member’s Survivor Benefit Plan. A former spouse may be entitled to still receive the benefits of this plan as long as they meet certain requirements. Under 10 U.S.C. 1447, a former spouse may be named as a beneficiary if the military member and spouse were married when the military member became eligible for retired pay, the couple was married for at least one year, or they had a child together.
However, enrollment into a Survivor Benefit Plan and naming a beneficiary is at the sole discretion of the military member. Therefore, it is imperative to implement a clause in your divorce decree requiring the military member take affirmative action to either enroll in the plan, convert an existing plan, and specifically name the former spouse as a beneficiary. This may be done by agreement of the parties or by a court order. However, the enrollment into this plan must occur prior to retirement. If your military spouse already enrolled in this plan during your marriage, it is imperative that the military member convert the plan to a former spouse beneficiary. You will also need to compete an Election Statement for Former Spouse Coverage and note the involvement of a court order. This must be submitted within a year of your divorce, or your coverage will be lost.
Even if a court order exists and proper steps were taken to enroll and designate the former spouse as beneficiary, coverage may still be lost. If a former spouse remarries while under the age of 55, they will lose these benefits during the duration of the marriage. If the subsequent marriage ends, the former spouse will regain the benefits under the plan. However, if a former spouse remarries after the age of 55 benefits will remain intact, even during the subsequent marriage.
A Survivor Benefit Plan is a crucial asset in a marriage and must be discussed in your divorce settlement. Your lawyer will discuss your ability to retain this insurance and ensure your rights are protected during this process.
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