Military Survivor Benefits in an Illinois Divorce

 Posted on December 08,2016 in Division of Assets

A common issue in military divorces is determining the non-military spouse's share of any pension benefits. For example, members of the armed services participate in a survivorship benefit plan. Under federal law, former spouses are not entitled to a survivor benefit unless the military spouse makes a voluntary designation of benefits or an Illinois court orders such a designation as part of a divorce decree.

Court Rejects Wife's Appeal Over Husband's Military Benefit

Military survivorship benefits are not divisible. This means that if a court orders a military spouse to name an ex-spouse as beneficiary, he or she cannot split the benefit with any future spouse. Survivorship benefits are therefore an “all-or-nothing proposition,” according to an Illinois appeals court that recently addressed such a case.

In that case, the husband was—and still is—an officer in the United States Navy. He entered the service 12 years before marrying the wife. The couple were married for approximately six years before separating, and the wife filed for divorce.

A circuit court judge held a trial regarding a number of disputed property issues and entered a written divorce decree in 2014. As part of its ruling, the court denied the wife's request to award her the husband's military survivor benefit. The court noted the survivor benefit is part of the husband's overall U.S. Navy pension. Since more than half of that pension is non-marital property– he was married to the wife for less than half of his career–it would be “unequitable” to award her the survivor benefit.

The court also cited the indivisible nature of the survivor benefit. If the husband were to, say, remarry and enjoy a “long marriage of 30 years” with his new spouse, he could not give the new spouse his survivor benefit if his ex-wife was already named as the beneficiary.

Finding a Creative Alternative

Now, the husband and wife agreed that she would receive 50 percent of his actual pension, but that will only provide her with benefits while he is still alive. Since the husband's premature death would be financially devastating to the wife (and the couple's son), the court therefore ordered the husband to name the wife as the beneficiary of his life insurance policy. This would protect the wife and son against a sudden loss of pension and/or child support payments. The court also suggested the wife could, at her own expense, obtain additional life insurance coverage on the husband's life.

Despite this resolution, the wife still appealed the denial of her claim on the military survivor benefit. The Illinois First District Appellate Court rejected the appeal and affirmed the circuit court's decision. The First District noted the circuit court “was not required” to award the survivor benefit to the wife as a matter of law. The trial judge's job was to ensure the “fairest result” for both parties taking into account all relevant factors, and here the Appellate Court said it could not say the circuit court failed to do that.

An Illinois Family Law Attorney Can Help

Divorce often involves untangling a complex web of property and laws. That is why it is essential to work with an experienced DuPage County military divorce attorney to help protect your interests in court. Contact our offices today to speak with a qualified attorney about your case.

Source:

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/1stDistrict/1141652.pdf