In re Marriage of Kellie Coviello Recently Held That the Wife Was Not Entitled to her Husband’s Survivor Benefit

The husband Jason, is a naval officer. He began his service in the United States Navy on July 29, 1991, approximately twelve years before the parties married in 2003. The parties have one minor child who was born in 2005. In May 2011, Kellie separated from Jason and filed a petition for dissolution of marriage. At the time of trial, Kellie was 43 years old, Jason was 41 years old, and the minor child was 8 years old.

Jason expects to continue in the military and does not know when he will retire. Jason’s pay includes a base rate and certain allotments that vary and are based on numerous factors, including where he is stationed. Jason’s pension will be based on his highest 36 months of base pay, which could be the last three years he works for the Navy or could be some other three years. Before getting the pension benefit, the Navy will deduct, off the top, the premium for the survivor benefit plan.

Slightly more than half of Jason’s pension is nonmarital property, because it was accrued before Jason and Kellie married. Jason joined the military on July 29, 1991, and married Kellie on May 8, 2003. Thus, at the time of the trial court’s final order on April 30, 2014, approximately twelve years of Jason’s pension was nonmarital property and nearly eleven years was marital property, a roughly even split. Because the parties had agreed that Kellie would receive half of the marital portion, this meant that, at the time of the court’s ruling, Kellie received about one-half of one-half of the pension, or 25%, while Jason received 75%.

Military survivor benefit plans “are a creature of Federal law,” and “[a]ny right to create, modify, or revoke such plans is prescribed by Federal statutes.” In re Marriage of Lipkin, 208 Ill. App. 3d 214, 218 (1991); see also 10 U.S.C. §§ 1447 through 1455 (2012). The survivor benefit plan provides benefits to a survivor after the service member’s death. As a “former” spouse, Kellie would not be entitled to a survivor benefit unless Jason voluntarily elected her as the beneficiary or was ordered to do so by the court. See 10 U.S.C. § 1448(b)(2)(A) (2012) (former spouse may be voluntarily named as beneficiary); 10 U.S.C. § 1450(f) (4) (2012) (“A court order may require a person to elect *** to provide an annuity to a former spouse***.”). ¶ 13

Survivor benefits are not divisible, meaning if Jason named Kellie as the beneficiary of the survivorship benefits, he could not name a future spouse as well—he could not split the benefits between them. 10 U.S.C. § 1448(b)(2)(B) (2012) (naming a “former spouse” as beneficiary “prevents payment of an annuity to” a current spouse). In this way, the question of the survivorship benefit, unlike many other questions regarding marital property, is very much an all-or-nothing proposition; the trial court was faced only with the options of giving all of the survivor benefits to Kellie or none of them. ¶ 14 The amount of survivor benefit may be elected by the service member; that is, Jason could decide how much of his military retirement pay should be included and then would have to pay premiums (6.5% of the gross retirement pay selected) based on the amount selected. So if the court awarded Kellie this survivorship benefit, Jason’s monthly pension payment (and thus Kellie’s share, too) would be reduced accordingly by the premiums paid for that benefit. Two other aspects of military survivorship plans are of note here. First, even if Kellie were named as the beneficiary, were she to remarry before the age of 55, she would lose the survivor benefit. Second, if Kellie were to die before Jason, Kellie’s estate would not be entitled to the survivor benefit.

The trial court declined to give Kellie the retirement benefit since 75% of the benefit was Jason’s non-marital property.  The court instead gave Kellie a right in Jason’s life insurance policy.

It is important when dealing with military members that your lawyer be aware of Federal laws and regulations.  Our firm has concentrated on the representation of military members now for nearly 20 years.  Please call us if you are involved in a military divorce, as military personnel have a unique set of laws that pertain to their divorces.

 

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