Military Divorce and the Survivor Benefit Plan

Military couple considering divorce in Texas

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In many ways, a military divorce is just like any other divorce, but there can be additional financial complications that shouldn’t be ignored. One such complication is the Survivor Benefit Plan (SBP), a post-retirement survivor benefit that often factors into military divorce. If you're facing a military divorce, having a solid understanding of your financial rights is key, and an experienced Killeen military divorce attorney can help.

Your Military Divorce

In your military divorce, you’ll need to address the same terms of divorce that every other divorcing couple must. However, the fact that you or your spouse is in the military can make resolving these terms more challenging.


To obtain a Texas divorce, at least one spouse must have lived in the state for a minimum of 6 months prior to filing. If the spouses live in different counties, either spouse can file in either county as long as one of them has lived in the county for at least 90 days at the time of filing.

A military service member who is stationed in the State of Texas can file in the county he or she is stationed in, and a service member who was deployed from Texas can also file in the state during deployment.

The Servicemembers’ Civil Relief Act affords active duty military service members legal protections that include a stay of proceedings for divorce. While on active duty, a service member must agree to a divorce before it can be finalized – otherwise, it must be postponed until the service member is no longer on active duty.


If you’re seeking a divorce from an active-duty service member, only personal service of the divorce papers will do. If your spouse is deployed when you file, it can extend your divorce timeline.

As an active-duty service member, your spouse will be granted an additional 90 days to respond to your service. Alternatively, he or she can request that the court delay the divorce proceedings until after the deployment ends.

Child Custody

Whether the divorce is military or civilian, the matter of child custody arrangements must be addressed whenever shared children are involved. The fact that your divorce is a military divorce won’t necessarily affect your child custody arrangements, but if a deployment arises, the matter will need to be addressed.

The logistics of every child custody case are unique, and when one spouse is on active duty, these logistics tend to become even more complex. Either spouse can seek temporary orders that address child custody through the court in response to a deployment.

In Texas, child custody terms include both legal custody and physical custody.

Legal Custody

Parents are called upon to make important decisions about how their children will be raised, and this decision-making authority is addressed by legal custody. Legal custody involves the following kinds of primary decisions:

  • Decisions about the healthcare the children receive

  • Decisions about the children’s schooling and daycare

  • Decisions about the children’s religious upbringing

  • Decisions about the children’s participation in extracurriculars and travel

Divorced parents can continue making these decisions together, but one may be granted the authority to break a tie if doing so becomes absolutely necessary. Another approach is dividing the decisions between parents according to category. Alternatively, one parent may be awarded sole legal custody and make each of these decisions independently.

The everyday decisions that parents face around the clock are left to the parent who is with the children at the time. If a decision must be made in an emergency, the parent who is most readily available is called upon to do so.

Physical Custody

Physical custody refers to parenting time and determines when the children will be with one parent or the other. Parents can split their time with the kids relatively evenly, or one parent can take on the primary custodial role while the other has a visitation schedule.

Addressing Active Duty

When possible, the specifics of how child custody arrangements will be addressed in relation to deployments and relocations are included in the divorce decree. Generally, the servicemember is allowed to make up for some of the lost parenting time via extended visits upon return, which tends to be yet another scheduling hurdle.

When the primary custodial parent is the one being deployed, he or she can designate a close family member or friend approved by the court to exercise visitation rights in the parent’s absence.

Best Interest Factors

Texas courts base child custody orders on the best interests of the children involved, and in the process, they take the following factors into careful consideration:

  • The children’s ages

  • The children’s developmental stages and needs, including any special needs

  • Each parent’s ability and motivation to effectively address each of the children’s needs

  • The closeness fostered between each parent and each child

  • Each parent’s level of involvement in raising the children so far

  • Each parent’s age and overall mental and physical health

  • Each parent’s schedule and availability for the children

  • The distance the parents live from one another

  • Each parent’s commitment to effectively co-parenting with the other

  • Each parent’s commitment to supporting the other’s ongoing relationship with the children

  • The preferences of the children who are considered old enough to participate

The matter of parenting time can become very complicated very quickly, but a seasoned Killeen military divorce attorney has the legal skill and insight to help ensure that your parental rights are well protected throughout the divorce process and beyond.

Child Support

Child support is calculated according to predetermined state guidelines – with little variance. Generally, the parent who earns more is responsible for paying child support, even when parenting time is shared equally.

Either spouse can seek a child support modification in response to deployment. For example, if your ex will be earning considerably more during deployment, you can seek increased child support, but whether it’s granted will depend upon the unique circumstances involved, including your financial situation, your ex’s financial situation, and your children’s needs.

All of the following factors help guide child support determinations in Texas:

  • Each parent’s income

  • Each parent’s debt load

  • The children’s ages and needs, including any extraordinary needs

  • The children’s daycare and education expenses

  • Whether alimony is a factor

  • Whether the payor is responsible for supporting any additional children

  • Health insurance coverage for the children, including out-of-pocket expenses

The Division of Marital Property

In a Texas divorce, the property the couple acquired during their marriage (regardless of who bought what) must be divided in a manner that is fair, given the related circumstances. Whether the divorce is military or civilian doesn’t alter this division, but there are often unique complications associated with future retirement pay related to military divorce, and the SBP is one example.

Texas courts consider all of the following factors in the just and right division of marital property in divorce:

  • The size of the overall marital estate

  • The size of each spouse’s separate estate

  • The contributions each spouse made to the marriage, including childcare and housekeeping

  • Any wrongdoing on the part of either spouse – even in a no-fault divorce

  • Any spending down, hiding, or dissipation of marital assets in the buildup to divorce

  • The relevant terms included in a legally binding prenuptial or postnuptial agreement

  • Each spouse’s age and overall health

  • Each spouse’s earning capacity and career history

  • Each spouse’s level of education

  • The length of the marriage

Because property division has the potential to become one of the most hotly contested issues in any divorce, focused legal guidance is advised.


In Texas, alimony is only ordered when the divorce leaves one spouse without the means to provide for his or her own reasonable needs while the other has the means to help. One spouse’s military involvement generally doesn’t affect the calculation process. The following primary factors are considered in relation to alimony:

  • The length of the marriage

  • Each spouse’s age, overall mental and physical health, and earning potential

  • Each spouse’s income

  • Any contributions either spouse made to the other’s earning power or career

  • The job market and the feasibility of the recipient achieving financial independence

Alimony, which is called spousal maintenance in Texas, is usually set for the length of time the recipient needs to gain greater financial stability.

The Survivor Benefit Plan

The Department of Defense sponsors and subsidizes the Survivor Benefit Plan. Under this plan, when a service member dies, the Department provides up to 55 percent of the retired pay to an eligible beneficiary, such as a spouse or ex-spouse.

Service members on active duty receive free, automatic coverage, and the same is true of reserve members who die during training for a service-connected cause. Active-duty service members also have the opportunity to purchase coverage at retirement, while reserve members can elect coverage after 20 years of qualifying service for reserve retired pay.

Requirements upon Divorce

SBP coverage of a spouse ends with divorce unless specific actions are taken, such as when the court requires coverage in the divorce decree. In such cases, the beneficiary spouse must request the coverage through the military within the time limits and conditions that apply.

Sometimes, the service member’s soon-to-be ex is required to pay for the SBP in order to maintain the benefits. However, as a matter of military policy, actual payment for the retirement plan must come directly from the service member’s retired pay. As such, the former spouse has the following two options for repayment:

  • Reimbursing the ex-spouse directly by making monthly payments

  • Having the retired pay reduced by the percentage necessary to offset the cost of the SBP premium

The Benefits

The SBP ensures an ongoing lifetime annuity for the service member’s dependents that is based on a percentage of the member’s retired pay. The military retiree pays SBP premiums upon retirement. Because the premiums are paid from gross retired pay, they’re not taxed as income.

Coverage must be elected at retirement for this benefit to remain in effect, and Texas divorce courts sometimes require a service member to make this election with his or her ex as the designated beneficiary.

An important point to make is that when military couples divorce, the SBP doesn’t automatically transform into a benefit for the former spouse. In fact, spousal coverage is generally severed upon divorce. In order for the former spouse to receive this benefit, he or she must file the relevant court order with the military.

A Current or Former Spouse

SBPs go into effect only after the covered service member’s death. The benefit is generally available only to the member’s surviving spouse, but federal law allows the designation of a former spouse. SBP benefits are available to only one spouse, current or former, and the service member must have enrolled for this coverage, which the court can order in a divorce.

Income for the Recipient

SBPs, like most other retirement benefits, are taxed as income for the recipient – whether this is the service member’s former or current spouse.

Make the Call to an Experienced Killeen Military Divorce Attorney Today

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas, for more than 20 years – is a practiced military divorce lawyer who appreciates the complications inherent to military divorce and is well prepared to skillfully advocate for fair terms that support your parental and financial rights.

To learn more about what we can do to help you, please don’t delay scheduling your FREE consultation by contacting us online or calling us at (254) 781-4222 today.

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