Appellate Order & Decision

A person in the military can only have one survivor beneficiary on a military retirement pension. That is usually the person’s spouse. In other jurisdictions if the parties got divorced and the entire survivor benefit was accumulated during the marriage, the courts would award the spouse the benefit. However, under military law, if the spouse remarries before age 55, the spouse to whom the award was given would lose the benefit. The spouse would also lose the benefit if the spouse died before the military person passed away. The benefit is then gone forever. This case sets a precedent in Illinois as prior to this decision there was no IL law on this subject with case facts as in the Coviello case.

Jason was married for approximately 12 years prior to his marriage to his wife. The parties were married for about 11 years with 3 of those years in divorce court. Jason was planning to remain in the military after the divorce. As of the date of trial, more than 50% of his pension was non-marital. The court could not divide the spousal benefit because military law does not allow the survivor benefit to be divided. The court had to determine who should receive this benefit as it was an asset of the marriage, the wife or the husband. Since the survivor benefit has monetary benefit to the spouse, the court awarded life insurance on Jason’s life at his expense to be given to the spouse until their minor child was emancipated, to make up for the value of the marital portion of the survivor benefit. The court awarded the survivor benefit to Jason since more than ½ was non-marital . Also, giving the spousal benefit to Kelly would have reduced the amount of monthly benefits Jason would have received on retirement. Jason would have received none of the benefit but disproportionately paid the cost each month. This decision allows Jason to grant this benefit to any future spouse he may have if he so chooses or to a child of his and allows Kelly to have security in life insurance benefits to compensate for the loss of the survivor benefit.