San Antonio, TX Family Law and Military Divorce Blog

Monday, April 30, 2018

When Clarifying an Order for DFAS or OPM, Not Every Error Can Be Fixed

Our firm has helped many military former spouses clarify a domestic relations order so that DFAS will begin to pay former spouse retired pay.  We've done the same countless times for former spouses of Federal Civil Service employees so OPM will begin to pay the former spouse annuity.

Sometimes serious errors are detected when analyzing the defective order to be clarified.  For example the former spouse's award in one order rejected by DFAS read as follows:  "The former spouse is awarded 50% of the disposable retired pay of a Lieutenant Colonel (O-5), with 13 years and 10 months of creditable service on the date of divorce." (emphasis added).

The reason DFAS rejected the order is because it failed to state the high-36 months' base pay of the Servicemember at divorce.  In analyzing the case data, however, it was discovered that the Servicemember actually had 19 years and 5 months creditable service at divorce, of which 13 years and 10 months of service overlapped the marriage. 

What's the importance of years and months of creditable service at divorce?  It determines the hypothetical retired pay multiplier.  The hypothetical retired pay multiplier for 19 years and 5 months creditable service at divorce is 48.5416% of the Servicemember's high-36 months' base pay.  The hypothetical retired pay multiplier for 13 years and 10 months creditable service at divorce is 34.5833% of of the Servicemember's high-36 months' base pay.   The fact that the order to be clarified misstated the correct years and months of creditable service is an error that cannot be fixed--and one that costs the former spouse a significant portion of his or her rightful entitlement as the years go by.

Texas Family Code § 9.007 states that, in clarifying an order, a Court “may not amend, modify, alter or change the division of property made or approved..."   To further underscore the point, the 4th Court of Appeals (here in San Antonio) stated that "an unambiguous decree that contains errors which produce an unfair result is not subject to clarification."1  (emphasis added). 

What's the take-away?  Get it right the first time!  Ensure your attorney is knowledgeable about how to draft a domestic relations order that is both accurate and acceptable to DFAS upon initial submission.  Likewise, ensure your attorney is knowledgeable about how to draft a court order dividing a FERS annuity that is both accurate and acceptable to OPM upon initial submission.  Otherwise, some mistakes cannot be corrected later and those mistakes can prove costly.

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.

Note1See, Lohse v. Cheatham, 705 S.W.2d 721, 726 (Tex. App.—San Antonio 1986, writ dism’d w.o.j.).


Archived Posts

2018
2017
November
October
September
July
June
May
April
February
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013


↑ Back to TopEstate Planning NewsMilitary Divorce News

The Cramp Law Firm is located in San Antonio, Texas and assists clients throughout Bexar, Comal, Guadalupe and Kendall counties.



© 2018 Cramp Law Firm, PLLC | Disclaimer
Alamo Towers West, 901 NE Loop 410, Suite 800, San Antonio, TX 78209
| Phone: 210-762-4502

Practice Areas | Principles | Fees & Discounts | Attorney Bio

FacebookGoogle+TwitterLinked-In CompanyYouTube

Law Firm Website Design by
Zola Creative