Attention to detail matters when first drafting a domestic relations order and entering it with the Court. Sometimes—whether weeks or months later—a former spouse or alternate payee learns that a domestic relations order requires clarification before it can be accepted by the paying organization such as DFAS, OPM or a plan administrator for a private employer’s 401(k).
In analyzing the task, sometimes it is discovered that certain information or variables in the original order are flat-out wrong (e.g. an order states the member or employee had 24 years of creditable service at divorce when the truth is he or she had only 20 years of creditable service). Whenever information is wrong, but unambiguous, the attorney is constrained in drafting a clarification order.
Erroneous but unambiguous information cannot be corrected—because that would represent an impermissible modification and not a clarification of the terms of the order. Modification of a final order is prohibited by the Texas Family Code1 and case law2 even if the unambiguous error produces an “unfair result.” Ouch!
It’s always best to get it right the first time. Depending on your circumstances, make sure your attorney is experienced in drafting Domestic Relations Orders—Military Retirement, Orders Dividing Federal Civil Service (FERS or CSRS) Annuity, and private employer 401(k)s. Our firm has that experience. We not only draft the orders, but we also process the former spouse or alternate payee’s application for payment to DFAS, OPM or the 401(k)’s plan administrator.
Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC. The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world. The firm specializes in Federal Civil Service and Military Divorce matters. The firms also provides Wills and Estates and Probate services.
Note1 — Tex. Fam. Code § 9.007 (stating a Court “may not amend, modify, alter or change the division of property made or approved in the decree [or domestic relations order]”)
Note2 — Lohse v. Cheatham, 705 S.W.2d 721, 726 (Tex. App.—San Antonio 1986, writ dism’d w.o.j. (stating that a court only has authority to clarify, not modify, a decree [or domestic relations order] and further stating that an unambiguous decree that contains errors which produce an unfair result is not subject to clarification). (emphasis added).