The Survivor Benefit Plan comes up in almost every military retirement divorce case, and it is almost always mishandled. The reason is simple: SBP is not mentioned in the USFSPA, it has its own separate rules, and the deadline to secure former spouse coverage is absolute. Miss the one-year window and the coverage is gone permanently, regardless of what the divorce decree says about retirement pay.
Quick Answer
In a Virginia military divorce, former spouse SBP coverage must be ordered in the divorce decree or elected within one year of the divorce. Miss that deadline and the former spouse permanently loses SBP coverage. No subsequent court order can restore it.
What SBP Actually Is
When a service member retires, the Survivor Benefit Plan gives them the option to designate a beneficiary who will receive a monthly annuity if the retiree dies first. At the maximum election, that annuity is 55% of the retiree’s retired pay. The premium is currently 6.5% of the base retirement amount, deducted monthly.
In an intact military marriage, the spouse is usually the SBP beneficiary by default. Divorce changes everything. After a divorce, the retiree can change the beneficiary. If the divorce decree does not specifically address SBP and no election is made within a year, the former spouse has no SBP coverage even if they are receiving a share of retirement pay.
The One-Year Deadline and How It Works
There are two ways to secure former spouse SBP coverage after a divorce. First, the divorce decree can order it, which triggers what is called a deemed election. DFAS processes the coverage automatically once the former spouse submits the certified decree. Second, the service member can voluntarily elect former spouse coverage within one year of the divorce.
If neither happens within 12 months of the divorce, the coverage is gone. Courts cannot restore it. The time limit is set by federal law, and neither a Virginia judge nor an agreement between the parties can extend it.
Even when the decree correctly orders coverage, the former spouse still needs to submit certified copies to DFAS. DFAS does not follow up. The obligation to submit is entirely on the former spouse, and missing that step produces the same result as having no order at all.
What “Deemed Election” Language Actually Has to Say
Generic divorce decree language often fails DFAS review. Language that says the former spouse “shall receive SBP coverage” without referencing the specific statutory authority is frequently rejected. DFAS has specific formatting requirements for deemed election orders. An attorney who handles military divorce regularly knows what language DFAS will accept. An attorney who does not handle these cases regularly may write language that sounds right but fails when submitted.
The Real Dollar Value of SBP in a Property Settlement
SBP is an asset with real present value. On a $3,000 monthly retirement, SBP coverage costs about $195 per month in premiums and pays $1,650 per month to the surviving former spouse. Depending on the ages of both parties and actuarial life expectancy, the present value of that annuity can be several hundred thousand dollars.
When a divorce settlement is being negotiated, SBP needs to be on the table as part of the overall property discussion. A former spouse who gives up SBP in exchange for nothing has given up significant value without knowing it. A retiree who agrees to maintain SBP has taken on an ongoing cost that affects monthly cash flow for the rest of their life.
How VA Disability Pay Affects SBP
After the Supreme Court’s decision in Howell v. Howell in 2017, Virginia courts cannot divide VA disability compensation as a marital asset. Many retirees waive a portion of retired pay to receive VA disability compensation, which is not taxable. When that happens, the base amount on which SBP premiums and benefits are calculated shrinks. A future disability rating increase after the divorce can reduce the former spouse’s actual SBP benefit below what the decree contemplated, and there is no remedy for it.
Speak With Shawna L. Stevens PLLC
With more than 20 years in Virginia military divorce law, Shawna L. Stevens handles SBP elections and military retirement division for families throughout the Fredericksburg region. If your divorce involves military retirement benefits, call (540) 310-4088 or schedule a confidential consultation.