B-218899, AUG 1, 1985

B-218899, AUG 1, 1985

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - CHILDREN - DEPENDENCY STATUS DIGEST: UNDER THE LAWS GOVERNING MILITARY AND CIVIL SERVICE SURVIVOR ANNUITIES, ONLY "UNMARRIED" CHILDREN ARE ELIGIBLE CHILD BENEFICIARIES. THIS IS GENERALLY BECAUSE THE SURVIVOR ANNUITY PROGRAMS ARE FOR THE SUPPORT OF THE DEPENDENTS OF DECEASED GOVERNMENT PERSONNEL, AND THE MARRIAGE OF A CHILD TERMINATES THE DEPENDENCY RELATIONSHIP. NO SPECIFIC PROVISION IS MADE FOR A CHILD WHO MARRIES AND THEN OBTAINS DIVORCE OR ANNULMENT TO AGAIN QUALIFY AS AN "UNMARRIED" CHILD FOR ANNUITY PURPOSES. WHILE IT APPEARS DOUBTFUL THAT A DIVORCED CHILD COULD HAVE THE ANNUITY REINSTATED, THERE MAY BE A BASIS TO REINSTATE AN ANNUITY WHERE THE MARRIAGE IS ANNULLED SINCE, GENERALLY, THE MARRIAGE IS CONSIDERED TO HAVE BEEN VOID FROM THE BEGINNING.

THE HONORABLE PAUL TRIBLE: UNITED STATES SENATE

WE REFER TO YOUR LETTER DATED APRIL 11, 1985, WITH ENCLOSURES, CONCERNING A QUESTION ASKED ABOUT THE SURVIVOR BENEFIT PLAN AND THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN BY YOUR CONSTITUENT, MAJOR WILLIAM M. FRASER, UNITED STATES ARMY (RETIRED), OF 14 CORNWALLIS PLACE, NEWPORT NEWS, VIRGINIA 23602. YOUR LETTER WAS FORWARDED HERE FOR RESPONSE BY THE ASSISTANT SECRETARY OF DEFENSE FOR LEGISLATIVE AFFAIRS.

MAJOR FRASER INDICATES THAT WHEN HE RETIRED FROM THE ARMY IN 1965, HE SUBSCRIBED TO THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TO PROVIDE FOR THE FINANCIAL SECURITY OF HIS WIFE AND SON. IN 1973 HE ALSO ELECTED TO PARTICIPATE IN THE NEWLY AVAILABLE SURVIVOR BENEFIT PLAN. BY JOINING THESE PLANS, HE CHOSE TO RECEIVE MILITARY RETIRED PAY AT A REDUCED RATE IN ORDER TO PROVIDE ANNUITIES FOR HIS DEPENDENTS IF THEY SURVIVED HIM.

MAJOR FRASER FURTHER INDICATES THAT ALTHOUGH HIS SON IS NOW OVER 18 YEARS OF AGE, HE HAS REMAINED AN ELIGIBLE BENEFICIARY UNDER THE PLANS AS A "DEPENDENT CHILD" SINCE HE IS INCAPABLE OF SUPPORTING HIMSELF BECAUSE OF A MENTAL DISABILITY INCURRED BEFORE HIS EIGHTEENTH BIRTHDAY. MAJOR FRASER NOTES THAT UNDER THE LAWS GOVERNING THE PLANS, HOWEVER, CHILDREN OF ANY AGE CANNOT QUALIFY AS DEPENDENT CHILD BENEFICIARIES IF THEY ARE MARRIED. ALTHOUGH HIS SON HAS NEVER MARRIED, MAJOR FRASER OBSERVES THAT IF HE WERE TO MARRY HE WOULD NO LONGER QUALIFY AS A BENEFICIARY UNDER THE PLANS EVEN THOUGH HE MIGHT REMAIN DISABLED. MAJOR FRASER'S QUESTION IS WHETHER, IN THAT HYPOTHETICAL SITUATION, HIS SON MIGHT REGAIN THE STATUS OF AN ELIGIBLE "UNMARRIED" CHILD BENEFICIARY UNDER THE PLANS IF THE MARRIAGE WERE TERMINATED BY DIVORCE OR ANNULMENT.

THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND THE SURVIVOR BENEFIT PLAN ARE INCOME MAINTENANCE PROGRAMS FOR THE DEPENDENTS OF DECEASED SERVICE MEMBERS. THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. SECS. 1431-1446, WAS ESTABLISHED BY THE ACT OF AUGUST 8, 1953, PUBLIC LAW 239, 83D CONG., CH. 393, 67 STAT. 501. THE SURVIVOR BENEFIT PLAN, 10 U.S.C. SECS. 1447-1455, WAS ESTABLISHED IN 1972 THROUGH THE ENACTMENT OF PUBLIC LAW 92-425, APPROVED SEPTEMBER 21, 1972, 86 STAT. 706, AND IT WAS DESIGNED AS AN IMPROVED SURVIVOR ANNUITY PROGRAM FOR MILITARY PERSONNEL. AS MAJOR ERASER NOTES, UNDER BOTH PLANS ONLY THE "UNMARRIED" CHILDREN OF SERVICE MEMBERS ARE DEFINED AS ELIGIBLE CHILD BENEFICIARIES. 10 U.S.C. SECS. 1435(2)(A) AND 1447(5)(A). THIS LIMITATION WAS PATTERNED AFTER A PROVISION OF THE CIVIL SERVICE RETIREMENT LAWS, 5 U.S.C. SEC. 8341(A)(3), WHICH ALSO RESTRICTS ELIGIBILITY FOR A CHILD'S SURVIVOR ANNUITY TO THE "UNMARRIED" CHILD OF A DECEASED FEDERAL EMPLOYEE. SEE S. REP. NO. 1089, 92D CONG., 2D SESS., REPRINTED IN 1972 U.S.C. CONG. & AD. NEWS 3288, 3313-3314.

WE HAVE EXAMINED THE LEGISLATIVE HISTORY OF THESE ENACTMENTS AND HAVE FOUND NO EXPLANATION SPECIFICALLY DETAILING THE REASONS WHY ONLY "UNMARRIED" CHILDREN WERE DEFINED AS ELIGIBLE CHILD BENEFICIARIES UNDER THE MILITARY AND CIVIL SERVICE SURVIVOR ANNUITY PROGRAMS. IT APPEARS, HOWEVER, THAT THE RESTRICTION IS CONSISTENT WITH BOTH COMMON-LAW AND STATUTORY RULES GENERALLY ADOPTED AND FOLLOWED BY OUR STATES CONCERNING THE RELATIONSHIP BETWEEN PARENT AND CHILD. UNDER THOSE RULES, PARENTS' RESPONSIBILITY TO SUPPORT THEIR CHILDREN ORDINARILY CEASES WHEN THE CHILDREN REACH THE AGE OF MAJORITY, UNLESS A CHILD REMAINS INCAPABLE OF SELF-SUPPORT BECAUSE OF PHYSICAL OR MENTAL INFIRMITY. MARRIAGE BY A CHILD HAS GENERALLY BEEN HELD TO TERMINATE THE PARENTS' RESPONSIBILITY OF SUPPORT, HOWEVER, SINCE THE MARRIAGE CREATES RELATIONS INCONSISTENT WITH THAT RESPONSIBILITY. THE COURTS OF SEVERAL STATES HAVE ALSO HELD THAT THIS "EMANCIPATED" STATUS OF A CHILD WHO MARRIES IS UNAFFECTED BY A SUBSEQUENT DIVORCE. SEE, GENERALLY, 67A C.J.S. PARENT AND CHILD SECS. 8, 51, 62 (1978).

AS MAJOR FRASER NOTES, IN THE CASE OF A WIDOW OR WIDOWER WHOSE ANNUITY IS SUSPENDED BECAUSE OF REMARRIAGE, A PROVISION OF THE SURVIVOR BENEFIT PLAN SPECIFICALLY AUTHORIZES REINSTATEMENT OF THE ANNUITY IF "THAT MARRIAGE IS TERMINATED BY DEATH, ANNULMENT, OR DIVORCE." 10 U.S.C. SEC. 1450(B). THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN CONTAINS NO SIMILAR PROVISION, HOWEVER, AND NEITHER PLAN SPECIFICALLY AUTHORIZES THE REINSTATEMENT OF THE ANNUITY OF A "DEPENDENT CHILD" WHO MARRIES IF THE MARRIAGE IS LATER TERMINATED. OUR VIEW IS THAT IN THE ABSENCE OF SUCH STATUTORY AUTHORITY IT APPEARS DOUBTFUL THAT THERE WOULD BE A PROPER BASIS FOR THE REINSTATEMENT OF A CHILD'S ANNUITY IN THE HYPOTHETICAL CIRCUMSTANCES DESCRIBED BY MAJOR FRASER, INVOLVING A CHILD WHO MARRIES AND THEN HAS THE MARRIAGE TERMINATED BY A DIVORCE.

AS TO ANNULMENT OF A MARRIAGE, WHILE STATE LAWS VARY SOMEWHAT, THE GENERAL RULE IS THAT AN ANNULMENT DECREE RENDERS A PURPORTED MARRIAGE VOID FROM THE BEGINNING, RATHER THAN MERELY TERMINATING IT AS DOES A DIVORCE. SEE 54 COMP.GEN. 600, 601 (1975), AND AUTHORITIES CITED THEREIN. THUS, IN SUCH A CASE THERE MAY BE A BASIS FOR US TO CONCLUDE THAT, FOR THE PURPOSE OF QUALIFYING FOR AN ANNUITY, THE MARRIAGE DID NOT EXIST AND THE ANNUITY COULD BE REINSTATED. COMPARE 54 COMP.GEN. 600, SUPRA, CONCERNING A WIDOW'S REMARRIAGE WHICH WAS SUBSEQUENTLY ANNULLED BASED ON WHICH WE AUTHORIZED REINSTATEMENT OF HER FAMILY PROTECTION PLAN ANNUITY.

WE MUST ADVISE YOU, HOWEVER, THAT BASED ONLY ON THE HYPOTHETICAL SITUATION MAJOR FRASER OUTLINED, WE ARE UNABLE TO PROVIDE A DEFINITE DETERMINATION. TO DO SO WE WOULD NEED ALL THE FACTS OF THE ACTUAL CASE, INCLUDING THE COURT DECREE TERMINATING THE MARRIAGE.

WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY. THE ENCLOSURES INCLUDED WITH YOUR LETTER ARE RETURNED AS REQUESTED.