When it comes to getting a divorce, military families’ retired pay as a service member is likely to be the most important aspect of the Community property division within a Texas divorce case. One of the great benefits of working at the Law Office of Bryan Fagan is the opportunity to serve military members with great frequency. Upwards of 10% of militaryretirees live in the state of Texas. With many of them calling the Houston area home, our attorneys and staff are proud to work with and serve the military in this way. When military members go through a divorce, it is especially critical to be aware of the issues that impact you and your family.
Some of the more important issues that you need to be aware of when it comes to your military retirement center are how the department head of defense calculates non-disability and disability retirement pay and how military retirement interacts with disability pay. Additionally, military family members can receive a survivor benefit plan that spouses of military members need to be aware of as the divorce moves forward. These are the type of subjects that I would like to cover in today’s blog post. Most military members retire without also being on disability.
Military retirement pay must be accurately partitioned in your divorce and not limited to the current and future military retirement population. The long and the short of it is not every person who leaves the military shy of retirement age gives up all their chance to count the years they did serve towards military payments in an annuity. If you had left your military career before retirement age but transitioned into a federal civil service retirement occupation and it is possible that an annuity was created that is fairly substantial and eligible to be divided up in your divorce.
For this reason, you and your attorney will be charged with figuring out how to divide the military retirement pay into categories of being unvested, vested but not matured, or fully matured at the time of your divorce. Not only is this critically important for you, but it is also essential for your spouse, who has a right to be able to receive benefits as part of a settlement or trial in your Texas divorce. The more accurate you can be in partitioning these amounts, you will not lose any separate property interest in this retirement pay. In my experience, there is a greater risk of this, given that federal law must interact with Texas State law on retirement calculations and benefits in a divorce.
When it comes to partitioning your military retirement pay, you need to know that the United States Supreme Court issued rulings forty years ago that stated federal law trumps state law regarding military retirement pay. Supreme Court decisions from the 1980s have interpreted the law as clear that military retirement pay should be part of you are separate property rather than part of the community estate. this meant a dramatic difference for many families when it comes to the breakdown of a divorce and issues related to people’s finances after the divorce has ended.
In response to this decision from the Supreme Court, The United States Congress passed legislation that would allow Texas and other states to have the authority to divide military retirement pain and divorce according to state law rather than federal law. The most significant aspect of this decision is to allow Texas State family courts to treat military retirement pay as community property and thus divisible any divorce case. Importantly, this federal legislation allows Texas State divorce courts to partition military retirement pay in divorce though this is not required.
What do you need to know about direct payments to your ex-spouse after a divorce?
Some basic requirements must be met for your ex-spouse to be paid money directly from the Department of Defense. You must have served in the military for at least ten years before leaving the service for your spouse to qualify for these types of payments. However, keep in mind that the ten-year rule only prevents enforcement of a divorce order that partitions military retirement pay.
The bottom line is that if you have a valid final decree of divorce from a Texas family court and if your marriage and military service do not have an overlap of ten years or more, then your ex-spouse must seek your share of retired pay payments from you. She will have to go directly to you for those payments. Not only is this more difficult, but it can be at the very least awkward for you and your ex-spouse to engage in this type of interaction consistently.
What is the Servicemembers Civil Relief Act?
The Servicemembers, Civil Relief Act allows service members engaged in military operations in distant lands to have limited protection against default judgments being entered against them in legal matters such as divorce and child custody cases in Texas. Essentially, the servicemembers civil relief act would allow you to request a halt or pause to any proceedings so that you can concentrate on your mission at hand and not have to worry about a family law case being taken against you back here in the United States. Any default judgment reminder against you in a family law case in Texas requires that the attorney show proof that the military member was not on active duty while the case was occurring.
For example, let’s say that your spouse is in the military but not on deployment. If this is the case, you would need to fill out an affidavit stating their duty status and whether or not proper notice and service upon your spouse has been accomplished. The judge would have to appoint an attorney to represent your spouse before issuing a default judgment if they do not answer your original divorce petition.
If it is determined that your spouse is in the military, then the proceedings of your case would be paused once a motion is filed to do so by your spouse’s attorney. For the court to approve the request to pause the hearing, the court would have to determine that one of these three situations are in place: 1) that your spouse has the defense they could not be presented without their being present 2) that the attorney despite their best efforts cannot locate your spouse or 3) that your attorney could not determine whether or not a defense may exist against your petition to divorce them.
On the other hand, the service member’s civil relief act allows a divorce judge to pause the proceedings for not less than 90 days on its motion so long as two conditions are in place. The first of those two conditions would be that your spouse would have contacted the court by letter stating that they cannot appear due to their military service. The second condition would be that the letter would have to provide a date to the court that they will appear. The court would look to their ability to provide a date certain by what they can appear before the judge.
A court can choose to pause the proceedings for an additional length of time if it is apparent that your spouse is military service requires that they be away from the court for an extended period. Bear in mind that your military spouse cannot control how long they are deployed or how long they will be unable to attend a court appearance or otherwise participate in your divorce. The likelihood of this happening there’s perhaps slim but certainly needs to be discussed given the circumstances you find yourself in.
A final requirement to have the proceedings paused is that your spouse military commander must submit a letter on their behalf which states that their current military service prevents there from making an appearance in that leave, even if requested, could not be granted due to their specific circumstances and responsibilities in the military.
How does Texas family law relate to a division of military retirement pay?
For most of the 20th century, courts in Texas viewed retirement pay and benefits earned during the marriage to be part of the marital state. This means that these benefits are subject to division as being in the community estate. Military retirement pay is treated the same as private retirement benefits and has been since the 1970s. At that time, the Texas Supreme Court determined that military retirement pay before becoming matured constitutes Community property. This Community property could be divided along with another part of the community estate.
For a Texas court to issue a determination on your military retirement benefits, it must first establish jurisdiction over your case in circumstances. You must be a resident of Texas, that is to say, that you must have a domicile in Texas. Or, you must be a resident of another state only due to your military service. Finally, Texas can exact jurisdiction over your case if you give the state permission, even if none of the first two circumstances are relevant. In most cases, your presently being in Texas is not enough for there to be sufficient jurisdiction for a Texas family court to render a decision about your circumstances.
Typically speaking, residency or having your domicile in Texas means that Texas would have been the state where you began your military service. For example, if the last place where you lived, worked, and generally had your life with Texas before your military service, then there was a good bet that it would be determined that Texas is your domiciled state. One other way for Texas to still have jurisdiction on your case is if you have a vacation home here or generally find yourself in Texas quite a bit sufficient to be in the position work court could determine you have close contacts. Otherwise, so long as you consent to a Texas court having jurisdiction over your circumstances, that will wipe out any need to prove the first of the two being in place.
How is military retirement pay divided?
Once you have jurisdiction established in your case, a Texas family law court would typically use one of two methods to divide military retirement pay. The methods that would be employed largely depend on whether or not you are an active duty service member or whether or not you are currently retired from military service. Fully matured military retirement pay is the pay you would receive once you are retired from military service and are then receiving monthly retirement payments at the time of your divorce. Active-duty status means that you will continue to serve in the military after your divorce.
Essentially, matured private retirement, annuity, and retired pay benefits earned by either spouse during your marriage are part of the community estate and can be subject to division at the time of divorce. A formula has been created that shows that your spouse’s share of the military retirement is equal to 1/2 of the community interests in the military retirement pay Multiplied by the number of months the marriage overlapped with military service divided by the number of months of military service. The product of that calculation is then multiplied by the disposable retirement pay currently being received.
Let’s go through a hypothetical divorce scenario to talk a little bit more about this point. Let’s assume that you and your spouse have been married for 17 1/2 years. Overall, you have 20 years of military service to your name. Further, let’s assume that you and your spouse or married and had 15 years of overlapping service with your military career. You then divorced 2 1/2 years after you retired from the military.
Your retirement pay at the time of your divorce was $4000 per month on a gross basis. After your retirement, you received a 20% disability rating through the veteran’s administration. To receive tax-free disability pay, you waved that portion of your retirement pay to receive the tax-free disability benefit. In your final decree of divorce, you were ordered to make available to your spouse retirement benefits.
Final considerations regarding military benefits and divorce in Texas
With as many military members as we have to live in Texas, your attorney that you choose to represent you when your divorce must be able to help guide you through dividing a defined benefits plan. As most retirement plans these days for private citizens are not defined benefits, you may need to look around before locating an attorney who is proficient in doing so. Nevertheless, the attorneys with the law office of Brian Fagan are certainly capable of fulfilling these obligations to our military clients.
As you could probably tell from today’s blog post, the laws that impact the division of military retirement pay in divorce are multifaceted and difficult to understand at times. It would be best to determine whether or not you are retired or an active duty service member. Next, you need to determine whether or not you are retired when your divorce is still serving. Next, whether or not you are disabled comes into play. There are many considerations to make regarding these important subjects. You and your attorney will have to work to keep all of them straight.
The only numbers in a military retirement case that matter are those that the government produces. Additionally, when the veteran’s administration determines its disability rating for you and any money that will be paid, as a result of these, two are important considerations. Generally speaking, you and your attorney need to calculate to a reasonably close degree the number of benefits available to you and what your spouse may be entitled to in a divorce. This is extremely important to inform how you negotiate and the posture you take at mediation.
As a result, you must hire an attorney who has experience negotiating divorce decrees with military individuals. If you can, by all means, you should interview multiple family law attorneys before deciding on which one to hire.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the materials contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.