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What do Military Service Members Need to Know in San Diego Divorce Cases for Survivor Benefit Plan From a Divorce Attorney: 2019

There are many military members in San Diego including the Marines, Army, Navy, Air Force and other services who are going through a divorce. Division of assets can include the survivor benefit plan and an experienced family law attorney in San Diego can assist with legal analysis. This can be complex. Some consider the survivor benefit plan as policy of insurance. This policy is focused on the beneficiary who is the survivor of the member spouse. The income is paid from DFAS directly to the surviving non member spouse after the passing of the member spouse. There is a premium for the benefit and also a payout which consists of monthly payments. Doppelt and Forney, APLC have represented many members of the Armed Forces and can assist you with your case. Their firm also represents military members in issues of the parenting plan, spousal support, child support and global division of assets and debts.

Prior to retirement, the member spouse is required to complete a form which also will include election of the survivor benefit plan. If the service member is married at time of retirement, there must be a notarized signature of the non member spouse if the election is less than full SBP coverage. There are also procedures to convert the SBP from a former spouse to a new spouse and one example would be if the former non member spouse is deceased at time of retirement and the member spouse has remarried.

To begin, if there is no SBP and the plan member passes after retirement, the retirement payment ceases. To protect the former spouse’s share of the military retirement, San Diego Family Law Court may order that the service member elect survivor benefit coverage. This is up to the discretion of the Judge. The coverage is also indexed for inflation so that the amount increases yearly with a cost of living adjustment.

Should you elect or decline the SBP? This is dependent on many factors. First, are the ages of the member and non member spouse greatly different? For example, a non member spouse who is 20 years younger than the member spouse has a different analysis that the non member spouse who is 20 years older than the member spouse. Also, health conditions of both spouses are a consideration. There are many other considerations, such as premiums, which will need to be decided before election is made.

If the SBP is elected and/or ordered, the next issue is who pays? The member spouse will ask, in most circumstances, for the non member spouse to pay the premium since this is a benefit for the spouse who is a non member of the military. The premiums can be expensive and an individual and case by case analysis should be considered prior to making the election. The non member may assert that the payment should be as part of spousal support, if ordered, and for this cost to be added into either the disso master program for temporary spousal support or considered in the factors in Family Law Code Section 4320 for permanent spousal support.

Please feel free to call Doppelt and Forney, APLC at 800-769-4748 for a complimentary virtual consultation with a California licensed attorney. At the consultation, issues such as the SBP as well as military retirement and all other family law issues can be discussed. In this way, you can gather information to make the most informed and intelligent decision regarding your family law case. Feel free to bring a list of questions to your free in-person or virtual consultation as it is easy to forget what you really wanted to ask in the attorney’s office and this way you will remember.

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