Oklahoma Bar Journal
Watch Where You Step: Military Retirements and the Survivor Benefit Plan
By Evan Taylor
MILITARY RETIREMENT OVERVIEW
A member of the United States military, upon completion of his or her required term of service, is entitled to draw retired pay. Federal law allows the states to treat “disposable retired or retainer pay either as property of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court” under the Uniformed Services Former Spouses Protection Act. Oklahoma has, in turn, squarely decided that military retired pay may be divided as marital property in a divorce action. When the division is handled in an offhand manner, such as stating in the decree that, “Wife is awarded her marital share of the Husband’s military retirement to be divided by Qualified Domestic Relations Order,” or something similar to this will create a lot of problems. This abbreviated approach pushes all the hard work off to the task of drafting a retirement division order, as the Defense Finance and Accounting Service (DFAS) will not divide the military retirement based on that language in the decree. In fact, such an approach is deficient in more ways than one and a poor way to handle the retired pay, which may start before the military member reaches 40 years old. Nonetheless, this article will not seek to cover all issues in dividing a military pension but will instead focus on one invisible issue that is lurking out there. This is because although the DFAS will conspicuously refuse to send payment under a deficient retirement division order, the DFAS will not notify anyone that something very important remains uncompleted.
Military retirement pay is a pension and, more specifically, a defined benefit plan. This means that it provides a benefit beginning at a predefined retirement age according to a formula at least partly based on the years of service and the salary of the beneficiary. This benefit is then paid to the military member until his or her death. After the member’s death, the DFAS will stop the member’s payments. It also means the former spouse’s payments will cease as well. The only way to prevent the cessation of payments is for the military member to elect a survivorship annuity. This annuity adds a monthly premium cost that is subtracted from the monthly pension payment. Unless required to maintain the benefit, the military member may not elect it, and thus, the hidden danger is the former spouse’s share of the military retirement will evaporate upon the member’s death. The military member might also be harmed by having a deduction for a benefit that was not properly elected.
THE SURVIVOR BENEFIT PLAN
The U.S. military’s survivorship annuity is known as the Survivor Benefit Plan (SBP), and it is associated with the member’s military retired pay. The SBP was created in 1972 to provide for survivors of retired military personnel. Enrollment in the plan is automatic for military personnel who are entitled to retired pay unless he or she affirmatively opts out of the SBP. By default, benefits are paid to an eligible surviving spouse. If the service member predeceases the spouse or former spouse, then the survivor is eligible to receive 55% of the selected base amount (usually the full pension) for life. The cost of the monthly premium for SBP coverage is 6.5% for active-duty retirement. The percentage used to determine the premium is different for retired reservists and National Guard members.
MISSTEPS TO AVOID
One misstep is drafting an order that requires the member or the former spouse to pay the premium for the SBP. Federal law requires that the SBP premium be deducted from the gross pay, so it is subtracted from the retired member’s pay before the pension is divided. The federal government cannot change the premium allocation for the deduction from the total before arriving at the disposable retired pay. Thus, no state court order can effectively direct the DFAS to withhold the premium from the former spouse’s share or change the percentage of the division. Thus, no agreement or order should attempt to divide the cost of the premium unless there is another mechanism outside of the DFAS to affect the division between the parties.
Another misstep is that the SBP election was not made in time. A service member whose marriage ends after becoming eligible to participate in the SBP has “one year after the date of the decree of divorce, dissolution, or annulment” to “elect to provide an annuity to that former spouse.” A service member who elects to provide an annuity to a former spouse must, at the time of making the election, provide a written statement, signed by the service member and the former spouse, stating whether the election is being made pursuant to the requirements of a court order or voluntary written agreement. The service member does so by submitting a DD Form 2656-1. The form requires that a certified copy of the relevant order be supplied with the form.
A further misstep is the former spouse’s lawyer relying on the military member to make the election. If the service member does not submit the required form, then the former spouse can make a “deemed election.” If a service member “is required ... to provide an annuity to a former spouse and ... fails or refused to make such an election,” the service member’s former spouse may cause the election to be “deemed” made by providing a “written request ... that such an election be deemed to have been made” and a “[c]opy of [a] court order or other office statement” requiring the annuity to be paid to the service member’s former spouse. This form requires the former spouse to submit a copy of a court order that requires such election or incorporates a written agreement giving them coverage. The former spouse does this by submitting a DD Form 2656-10. For a former spouse to invoke this “deemed election,” the military must “receive [ ] a request from the former spouse ... within one year of the date of the court order or filing involved. The former spouse’s lawyer should affirmatively take on the responsibility to see that the proper forms are submitted to deem the election.
If someone is wondering whether the SBP was properly elected, there is a way to verify whether the SBP is in effect and if it has been awarded to the right person. This begins with obtaining a copy of a document sent out by the DFAS. The bad news is that this document is sent to the retired member, not the former spouse.
Each month, a retired military member receives a Retiree Account Statement (RAS) from the DFAS. On this RAS, there is a section on the first page with five lines for each member participating in the SBP. In that section, there will be a line for “Type of Coverage” or “SBP Coverage Type.” If it does not say “former spouse” under the Type of Coverage section, then someone needs to further inquire. The line may say “spouse only.” The line might even have the former spouse’s name listed. However, the absence of the proper designation of “former spouse” indicates that there is trouble. Of course, the former spouse or retired member may also contact the DFAS and request information regarding the status of the SBP benefit. The DFAS should confirm the status in a letter.
Now, let’s assume that was not done. The first step necessary lies with the state court orders. The problem may be that language related to the SBP may not have been properly phrased in the divorce decree or in the retirement division order. This will prevent the former spouse from making the “deemed” election. Worse yet, there is also a chance it was not included at all, such as in the offhand provision about the former spouse “being awarded his or her marital share.” But even if the SBP is mentioned, it is not sufficient to have language that says, “The former spouse may elect ...“ or “The Air Force will provide ...” or something similar. The language must not be conditional. Instead, the language must clearly impose a duty on the military member to make the former spouse election. It is this affirmative duty that allows the former spouse to file for a “deemed” election as described above. If there is a lack of sufficient language or it is absent altogether, then the former spouse’s lawyer should begin problem-solving how to correct the underlying state court orders.
Oklahoma law restrains what can be done to change a faulty military retirement division. A final property division order is not subject to modification at a later date, except by those laws applying to vacating judgments. This is an issue of subject matter jurisdiction, and therefore, it cannot be waived or conferred by agreement of the parties. The retirement division order is a mechanism by which a divorce decree awards the retirement benefits.
The trial court’s authority is constrained to conform the retirement division order to the underlying divorce decree and is not allowed to modify the property division order. If the underlying orders do not mention the SBP, then there may be no recourse for addressing it now. If the underlying orders address it but the language is not sufficient to obtain the deemed election, then it will have to be changed. The movant is likely to attempt to ask the court to “construe” the decree and stretch that to the very edge of actual modification.
CORRECTING AN IMPROPER ELECTION
Now, there might be benefits to the military members if the SBP election was not properly made. If the service member remarries, he or she can elect coverage for the new spouse under various conditions. A service member can elect to cover his or her spouse should they remarry, but such an election must be made within one year after the date that person marries. However, if the service member already has coverage for a former spouse, then he or she can change coverage to his or her current spouse without regard to the aforementioned time limitation unless he or she is prevented from doing so. The service member would be prevented from changing the coverage if he or she was required by a court order or written agreement to provide the former spouse coverage unless:
- He or she can provide a certified court order that modifies the provisions of all previous court orders, which permits them to change the election; or
- In the case of a written agreement, he or she submits a statement signed by the former spouse evidencing their agreement to change the election.
Thus, if there is no requirement for former spouse coverage, then the service member can use Form DD-2656-6 to request that his or her new spouse be covered by the SBP. The SBP cannot be split between former spouses and current spouses – it belongs to one or the other.
The danger for the military member is that he or she could have been paying the SBP premium for years without the benefit going to anyone. The retired member may have to seek an adjustment from the DFAS to refund the SBP premium. This has consequences because SBP premiums are taken off the top. Once the premium is removed, then the retired member’s disposable pay will increase. This will affect awards to former spouses based on a percentage. The refund of the SBP premium will result in a recalculation of the percentage owed to the former spouse and will likely result in an underpayment, which the DFAS will turn around and collect from the military member out of his or her future benefits. The military member needs to be careful of this danger zone as well.
Let’s say there has been a misstep or two, and the DFAS is refusing to process the order or finds that due to some deficiency, the election was not properly made. In this case, a service member or former spouse who is dissatisfied with the decision can petition the Board of Correction of Military Records for the relevant branch to remedy the problem. However, “no correction may be made ... unless the claimant ... or the Secretary concerned files a request for correction within three years after discovery of the error or injustice.” This is a federal administrative proceeding that offers an outlet for disagreements with actions taken by the military branch concerned. The process is begun by filing an Application for Correction of Military Record using Form DD-149. Each branch has its own process. For example, the Air Force provides an online portal to begin its process. It is suggested that if one is not familiar with this process, they contact someone who has experience with the same to ensure the best outcomes.
In short, one should be aware of the problem. The SBP is something that can make a big difference in the former spouse’s finances after the military member passes away. As the former spouse’s lawyer, it is important to see that he or she gets the benefit he or she has been awarded as a part of their divorce. As the military member’s lawyer, it is important to see that he or she is not paying for a benefit he or she has not been required to elect.
ABOUT THE AUTHOR
Evan Taylor is a family and divorce lawyer, as well as a dedicated chicken keeper, located in Norman.
 10 U.S.C §1408 et seq.
 Stokes v. Stokes, 1987 OK 56, 738 P.2d 1346; Rookard v. Rookard, 1987 OK 87, 743 P.2d 1083.
 There is so much wrong with this sentence that it could be the subject of multiple articles.
 10 U.S.C. §1447-1455.
 Pub.L. No. 92-425, 86 Stat. 706 (1972).
 10 U.S.C. §1448(a)(1)(A), (a)(2)(A).
 10 U.S.C. §1450(a).
 10 U.S.C. §1451(a)(1)(A).
 DoDI 1332.42.
 10 U.S.C. §1408(a)(4).
 10 U.S.C. §1448(b)(3)(A).
 See 10 U.S.C. §1448(b)(5).
 10 U.S.C. §1450(f)(3)(C).
 10 U.S.C. §1450(f)(3)(A)(ii).
 10 U.S.C. §1450(f)(3)(C).
 Jones v. Jones, 1968 OK 84, 442 P.2d 319.
 Shaffer v. Jeffery, 1996 OK 47, ¶7, 915 P.2d 910.
 Troxell v. Troxell, 2001 OK CIV APP 96, ¶5, 28 P.3d 1169.
 Tate v. Tate, 1996 OK 17, ¶3, 912 P.2d 320, 322 (citing Cartwright v. Atlas Chemical Industries, 1981 OK 4, ¶8, 623 P.2d 606, 610 (footnotes omitted)). More simply put, “‘modification' is an alteration in the terms of the adjudicated obligation." Cartwright, 1981 OK 4, ¶8, 623 P.2d at 610. A party may seek “clarification” of an order, especially if it relates to the adjudication of a controversy. However, a party cannot seek clarification without the order being unclear. In fact, the court has both the duty and the power to construe and correct its judgments. Mills v. Mills, 1992 OK CIV APP 136, 841 P.2d 624; Nelson v. Nelson, 2003 OK CIV APP 105, 83 P.3d 889. However, the court may not change substantive provisions of the decree in a proceeding to construe the decree. Titsworth v. Titsworth, 1952 OK 184, 244 P.2d 295.
 10 U.S.C. §1448(a)(5)(B).
 10 U.S.C. §1450(f)(1)(C).
 10 U.S.C. §1450(f)(2)(A & B).
 10 U.S.C. §1448(b)(2)(B).
 See 10 U.S.C. §1552.
 10 U.S.C. §1552(b).
Originally published in the Oklahoma Bar Journal – OBJ 95 Vol 9 (November 2023)
Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.