iStock-543681178Under federal law, a court may not treat military disability benefits as community property for purposes of property distribution in a Texas divorce case. A husband recently challenged the property distribution in his divorce decree, arguing the court had improperly divided a portion of his military disability benefits.

Trial Court Divides Husband’s Military Retirement Benefits

The wife petitioned for divorce and sought a majority of the community assets.  The court granted the divorce on grounds of insupportability and adultery.  The decree gave the wife 55% of the husband’s disposable military retired pay, attorney’s fees, and conditional appellate attorney’s fees. The husband appealed.

The husband contended the 55% of his disposable military retired pay awarded to the wife erroneously included disability payments. The wife, however, argued the award did not include disability benefits and the decree had specifically awarded him his “VA Disability and Social Security Disability benefits” as separate property.

The language in the decree awarded the wife “[f]ifty-five percent [of the husband’s] disposable military retired pay . . .including any accrued unpaid bonuses, disability plan or benefits. . .” The award to the husband used the same language.  Both sections also referenced the domestic relations order. “Disposable retired pay” was defined in the domestic relations order to have the same meaning as given in the Uniformed Services Former Spouses’ Protection Act. Pursuant to that Act, “disposable retired pay” may be considered community property.  Military disability pay and any amounts of retired pay that are waived for disability benefits are excluded from the definition of “disposable retired pay.”

Appellate Court Finds Trial Court Did Not Divide Husband’s Disability Payments

The trial court ruled it could not divide the disability income. The decree awarded the husband the VA disability and Social Security Disability benefits as separate property.  The appeals court found the definition of disposable retired pay excluded military disability pay.  Based on all of these facts, the appeals court found the trial court did not award the wife any of the husband’s disability payments.

The husband also challenged the awards of trial attorney’s fees and conditional appellate attorney’s fees. The appeals court found there was insufficient evidence supporting the awards of attorney’s fees.

To receive an award of attorney’s fees, a party must show the fees were reasonable and necessary.  There must be sufficient evidence of the reasonableness of the rate and the hours worked. Although there was evidence presented, it did not provide sufficient detail to support a finding of the reasonableness of the fees.

Appellate Court Reverses Trial Court’s Award of Attorney’s Fees to Wife

To receive an award of conditional appellate attorney’s fees, the party must present opinion testimony regarding the services reasonably believed to be needed to defend an appeal as well as a reasonable hourly rate.  The appeals court noted there was no evidence addressing appellate attorney’s fees.

The appeals court therefore reversed the trial court’s awards of attorney’s fees and remanded for the trial court to redetermine the fees. The appeals court otherwise affirmed the divorce decree.

Are Military Benefits at Issue in Your Divorce? Call McClure Law Group Today

Retirement and disability benefits can complicate a divorce. A skilled Texas divorce attorney can help you get a fair property division.  Call 214.692.8200 to schedule a consultation to discuss your case with McClure Law Group.