retireRetirement benefits can be a complex and contentious issue in a Texas divorce case.  Generally, any income earned during marriage is considered community property unless proven to be separate property, including funds contributed to a retirement account or earned as pension benefits.  In a recent case, a husband challenged a court’s order awarding a portion of his military retirement benefits to his ex-wife.

According to the appeals court’s opinion, the wife petitioned for enforcement of property division by contempt, alleging the husband had not paid her the retirement benefits awarded to her in their divorce decree.  The husband argued the military benefits had either been awarded to him or had not been divided at the time of the divorce.

The wife filed an amended motion to clarify, asking the court to enter a clarifying order if it found any part of the previous order was not specific enough for enforcement through contempt.  She specifically asked the court to clarify the order to reflect the length of the marriage and the husband’s dates of military service.  She also asked the court to sign a Military Qualified Domestic Relations Order.

The husband argued the divorce decree had not given the wife a portion of his military retirement and had in fact not divided that asset at all.

Trial Court Finds “Scrivener’s Error” in Divorce Decree

The trial court stated the judge had awarded “half of the community interest in nine years of Air Force retirement” to the wife.  The court found the decree contained “a scrivener’s error” awarding each party 100% of the retirement benefits and found it was not enforceable in contempt.  The court issued an order granting the motion to clarify and ordered the husband to provide the information needed to prepare a military domestic relations order.

The court then entered a Clarified Final Decree of Divorce, which awarded the wife 50% of the 9 years of Air Force service as specified in the domestic relations order.  The court entered a domestic relations order that stated the marriage lasted for about 22 years and the husband had served 9 years or more toward retirement during that time.  It awarded the wife 50% of the husband’s disposable military retired pay.  The husband appealed.

The husband argued the divorce decree had awarded him 100% of his retirement benefits, but the wife argued the decree had not stated percentages.  She argued that the decree indicated it was the parties’ intent for some of the husband’s military retirement to be awarded to her.

Appeals Court Agrees that Wife Entitled to Portion of Retirement Benefits

The appeals court noted that the decree stated “[a]ll sums” relating to the husband’s military retirement benefit were awarded to the husband except the portion awarded to the wife.  The decree also stated that the wife was awarded “[a]ll sums” relating to the husband’s military retirement except the portion awarded to the husband.  Furthermore, the decree stated the retirement award would be further detailed in a domestic relations order, but no domestic relations order was entered with the decree.

The appeals court found the language stating that each party would receive what the other was not awarded showed that both parties had an interest in the retirement benefits.  Because the decree did not specify a percentage, the award was ambiguous. The appeals court further pointed out that the decree included a separate provision addressing the husband’s retirement benefits from other employment and awarding those solely to the husband.  The appeals court also noted that the reference to a domestic relations order showed an intent to award part of the military retirement to the wife, because it would not be needed if the retirement was not going to be divided.

The appeals court found the trial court was correct in finding the terms of the decree were ambiguous and required clarification. Although there was no evidence admitted at the clarification hearing, the trial court based its decision on the findings and recommendations from the divorce proceeding. The appeals court found it did not abuse its discretion when it clarified the decree.

The appeals court also rejected the husband’s argument the court erred by changing the substantive division of property when it entered the domestic relations order.  The appeals court noted the trial court may render a domestic relations order if one had not previously been entered.

The appeals court affirmed the trial court’s clarification order.

Hire Attorneys Experienced in Dividing Retirement Assets

If you are considering divorce and have significant retirement accounts or benefits, a skilled Texas divorce attorney can fight for a fair and equitable division of assets on your behalf.  Call 214.692.8200 to arrange a consultation with McClure Law Group.