Military Pension and SBP

This page offers some insight into a military pension and SBP. This page should not be considered legal advice. If you have questions, call Anthony L. Montagna, III an experienced divorce attorney.  Anthony will answer your questions when you are in the military and  need a Newport News lawyer, Virginia Beach lawyer, or a  divorce lawyer any where in Hampton Roads, VA.  Call Anthony today at 757-625-3500.

What is The Survivor Benefit Plan (SBP)?

It is an annuity program that allows retired military personnel to care for and provide continuing income for family members or beneficiaries when the service member dies.

How much money does the beneficiary receive with SBP?

The designated beneficiary will receive a lifetime annuity for 55% of the designated base amount (10 U.S.C. Section 1451 (a)(1)(A).

How much is the SBP premium?

Generally, the rate is 6.5% of the selected base amount for the spouse or former spouse for service members who joined military service after March 1, 1990.

What are some of the advantages of SBP?

No one needs to qualify for coverage, no one needs to take any physical or be seen by a doctor, and coverage will not end if premiums are paid.

What are some of the disadvantages of SBP?

Cost and benefits are suspended if the former spouse beneficiary remarries before age 55.

How do I determine how much my spouse will receive from my military pension if we divorce?

                 NOTICE OF STATUTORY CHANGE

A change to the law has occurred that affects the manner in which court orders submitted to the Defense Finance and Accounting Service (DFAS) as part of an application for division of military retired pay pursuant to the Uniformed Services Former Spouses’ Protection Act (USFSPA) must be formatted.  The following information provides notification of these statutory changes:

The National Defense Authorization Act (NDAA) of 2017, in Section 641, signed by President Obama on December 23, 2016, amended the definition of disposable pay in the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408– In the case of a division of military retired pay as property (that becomes final prior to the date of a member’s retirement), the military member’s disposable income is limited to “the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order” and increased by the cost-of-living amounts granted to military retirees from the time of the (divorce) to the date the member retires.

In order to enable the designated agent (the Defense Finance and Accounting Service (DFAS), Garnishment Operations) to calculate the “new” disposable retired pay amount, a court order entered after December 23, 2016, (in a case where the order becomes final prior to the member’s retirement) that provides for a division of military retirement pay must provide the below listed three (3) variables.

If the member entered the service before September 8, 1980:

  1. A fixed amount, a percentage, a formula, or a hypothetical that the former spouse is awarded;
  2. The member’s pay grade at the time of divorce;
  3. The member’s years of creditable service at the time of divorce; or in the case of a reservist, the member’s creditable reserve points at the time of divorce.

If the member entered military service on or after September 8, 1980:

  1.  A fixed amount, a percentage, a formula or a hypothetical that the former spouse is awarded;
  2. The member’s high-3 amount at the time of divorce (the actual dollar figure);
  3. The member’s years of creditable service at the time of divorce; or in the case of reservist, the member’s creditable reserve points at the time of divorce.

If the award language in the court order is missing any of the above listed variables, we will not be able to approve the order and the court will have to clarify the award.  For additional information please see the web page at https://www.dfas.mil/garnishment/usfspa/legal.html .

Is a former spouse entitled to any percent of the retired service members VA disability pay?

Generally, no.

What is the 10 year rule?

A spouse must be married to a service member for at least 10 years of the service members total military service and the service member must retire from the service for the former spouse to receive direct payment from DFAS of her share of her ex spouse’s military retirement.

What income is included in determining a service member’s child support obligation?

Generally, one would use base pay, BAH, BAS, along with any other incidental pay, like hazardous duty, to determine the amount of the service member’s child support obligation.

Does DFAS automatically pay former spouse if 10 year rule is satisfied?

No. DFAS must be served with an acceptable  order, which divides the pension.

What can the former spouse expect if the length of time that marriage overlaps with the service member/spouse’s service creditable for retirement purposes is 20 years or more?

Division of retired pay, designation as an SBP beneficiary, full health care, commissary privileges, and PX privileges.

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