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San Antonio, TX Family Law and Military Divorce Blog

Thursday, June 11, 2015

Military Divorce: An Alternative to When DFAS Requests a Clarification Order

Sometimes the Defense Finance and Accounting Service (DFAS) will not accept a former spouse application for military retired pay because the divorce decree or domestic relations order fails to provide enough information for DFAS to compute the former spouse's entitlement.  DFAS' letter of non-acceptance instructs the former spouse to obtain a a court order that clarifies the award.  That's one option, but another exists that can be quicker and less costly.

Department of Defense regulations provide that, in such cases, the former spouse may submit either a clarification order or a notarized agreement.  A notarized agreement is a statement signed by each spouse (before a notary) that provides DFAS with the missing information it requires.  The notarized agreement is only possible if goodwill and cooperation between the ex-spouses still exists.  Once the notarized agreement has been accepted by DFAS, it is irrevocable except by subsequent court order. 

It should go without say that if goodwill and cooperation don't exist between the ex-spouses, then the only option is to obtain a clarification order from the court.  Speak with a qualified military divorce attorney for more information.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


Saturday, May 30, 2015

Modifying or Enforcing Orders After Children Move

Lately, I've had a flurry of cases aimed at modifying one or more children's issues in a divorce decree from a distant Texas county.  One centered on lifting a geographic restriction on the children's residence levied in a decree from Harris County.  Another centered on defending against a request to modify the custody determination in a decree from Coryell County.  Another centered on a request to modify child support in a decree from Wichita County.  In each of these cases, the court that rendered the final order (i.e. the divorce decree) acquired something known as "continuing exclusive jurisdiction," or CEJ for short.

CEJ means only that court has jurisdiction to modify or enforce its orders.  CEJ can be lost, however, if the children have lived in another Texas county for six months or longer.  In such a scenario, the courts with CEJ in the distant county face a mandatory transfer of the case to the child's new county of residence.

Triggering mandatory transfer requires that a petition (or answer) in a suit to modify the prior orders be filed in the court with CEJ (i.e. in the court in the distant county).  Simultaneously, a motion to transfer the case must be filed that recites that the new county of residence (e.g. Bexar County) has acquired jurisdiction based on the children's residence of six months or longer in that new county.  Notice of the motion to transfer must be served on the opposing party, typically through their attorney.  The other party has roughly three weeks to challenge the motion to transfer (e.g. argue that the child has not lived in the new county for the requisite time).  If no challenge is timely made, the court in the distant county must transfer the case without the necessity of a hearing.

The advent of electronic case filing (which is available in many, but not all, Texas counties) made it possible in each of the three scenarios for me to file the petition to modify (or answer to the other side's petition) and motion to transfer without ever leaving the comfort of my office.  Remember, when the motion to transfer is unchallenged, the transfer order gets signed by the relinquishing court without the necessity of a hearing in the distant county. 

Electronic filing, when available, yields a cost-efficient solution for clients.  Once the order is signed, the case is transfer by the relinquishing district clerk's office to the gaining district clerk's office in several short weeks.   Then, the heart of the matter proceeds in the new court.  In the end, effecting transfer of a case adds roughly two months' time to the case's life cycle.  

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Wednesday, May 20, 2015

Buy-Out of the Other Spouse's Interest in the Home in Divorce

In divorce, what should the divorce decree say in order to facilitate one spouse's buy-out of the other's interest in the community property homestead with proceeds from post-divorce refinancing?  The decree should include all of the following:

  • State the legal description of the property and divest the non-owning spouse of title convey sole title to the owning spouse;
  • Award a money judgement to the non-owning spouse for his or her share of the equity (i.e. the buy-out amount);
  • Secure the money judgement (i.e. the buy-out) by placing an owelty lien on the entire property;
  • Order the owning spouse to be solely responsible for the existing mortgage;
  • Order the owning spouse to execute a real estate lien note and deed of trust to secure owelty of partition in favor of the non-owning spouse; and,
  • Order the non-owning spouse to execute a special warranty deed with encumbrance for owelty of partition in favor of the owning spouse.

With these structures in place, the owning spouse--after the divorce has been finalized--may now refinance the property solely into his or her name and use proceeds from refinancing to pay-off the money judgement/note.  Making this happen, of course, rests on the assumption that the spouse who will receive sole title can qualify for refinancing and sufficient equity exists to execute the buy-out.  Once everything has been completed, the non-owning spouse's name is off the deed and mortgage.  Anyone considering this option should speak with both a qualified divorce attorney and qualified mortgage broker experienced in divorce refinancing.

 Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Sunday, May 10, 2015

Divorce and Conveying Title to the House

Many times in divorce one of the spouses will keep the house.  In all cases, the divorce decree should contain a legal description of the house and clearly divest one spouse of his or her community interest by giving that ownership interest to the spouse who will keep the home.  But, once the decree is signed by the judge, the work is not done.  Transfer of the divested spouse's interest must be visible in the county's real property records, otherwise the spouse owning the home may run into difficulty when it comes time to sell (i.e. a title company cannot verify the transfer when investigating the chain of title).

In general, making the transfer visible in the county's real property records can be done in one of two ways.  First, the divested spouse can be ordered in the decree to sign a Special Warranty Deed as "grantor" conveying his or her interest to the spouse keeping the home, the "grantee."  The deed is then recorded.  Second, the decree itself can contain language that  makes it a "muniment of title for all property awarded and transferred herein."  A "muniment" is merely a document that evidences title -- the decree serves as the equivalent of a deed.  The decree is then recorded in the county's real property records. 

What is the advantage of one over the other?  Transferring title by Special Warranty Deed costs less to record since the deed is about 3 pages.  It also keeps the other terms of the decree out of the public's eye.  Transferring title by the decree serving as a muniment of title gets the job done quickly when the other spouse is hostile and getting cooperation in signing a deed is uncertain at best.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Thursday, April 30, 2015

Compelling Return of a Child: Habeas Corpus

A Petition for Writ of Habeas Corpus provides the means to compel return of a child when the other parent is in wrongful possession.   The petition can be filed in the court of continuing exclusive jurisdiction (e.g. the court that rendered the last final order affecting the child) or in a court in the county where the child is found.  The parent filing the petition is known as "the Relator."

Only the right to possession is determined in a Habeas Corpus proceeding.  The determination hinges on the existence of a valid court order that gives the Relator a superior right of possession.  The issue of which parent "should" have possession based on any real or perceived change of circumstances cannot be relitigated.   In that light, any attempt by the parent in wrongful possession to argue that the "best interest of the child" require a change of possession must fail.  Once a superior right of possession is established, grant of the Writ of Habeas Corpus "should be automatic, immediate, and ministerial."  In re deFilippi, 235 S.W.3d 319, 322 (Tex. App.—San Antonio 2007, no pet.).

Speak with a qualified family law attorney for more information about this and related topics.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


Monday, April 20, 2015

Divorce and Title to Real Property Located Outside Texas

Some couples getting divorced in Texas, such as military or Federal civil service families, own real property outside of Texas.  This begs the question of whether a Texas divorce decree can dispose of real property located outside of Texas when dividing the marital estate.  The answer is, yes, as long as the court has personal jurisdiction over the spouse ordered to covey title.  The most clear example of a court acquiring personal jurisdiction over a spouse is when the spouse either filed the suit for divorce (i.e. they are the Petitioner) or the spouse responded to suit by filing an answer or otherwise participating in the proceeding (i.e. they are the Respondent). 

With personal jurisdiction established, a Texas court can hear evidence to characterize the property (i.e. determine whether it's one spouse's separate property or both spouses' community property), value the property, and order one of the spouses to convey title to the other.  The key point is that the court's power to order a spouse to convey title rests on the court's personal jurisdiction over that spouse.  If the spouse refuses to convey title, he or she can be found in contempt

What a Texas court cannot do is render judgment affecting title to real property outside of Texas (or, for that matter, outside of the court's jurisdiction if the property is in some other Texas county).   For example, a divorce court in Bexar County, Texas, could not render judgment in a suit to quiet title (i.e. determine the true owner) for real property located in some other State.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


 


Friday, April 10, 2015

Geographic Restriction: Limiting the Child's Residence in Divorce Cases

Courts routinely impose a geographic restriction at the temporary orders hearing  in divorce cases that involve minor children.  The restriction normally limits the child's residence to the current county of residence plus contiguous counties ("contiguous" means the surrounding counties whose borders touch the current county of residence).  So, for example, a geographic restriction that limits the child residence to "Bexar and contiguous counties" means the custodial parent (and child) could live anywhere in Bexar, Medina, Bandera, Kendall, Comal, Guadalupe, Wilson or Atascosa counties.  The purpose is twofold: (1) to keep the custodial parent and children in the local area until the divorce is finished; and, (2) to facilitate the non-custodial parent's visitation rights. 

Whether a geographic restriction will also be included in the final decree of divorce is a separate matter.  Sometimes it is included.  Other times it isn't.  For final orders, one factor courts consider is the parents' near-term and long-term employment prospects.  If a credible argument can be made that the custodial parent needs to be able to move anywhere in Texas or some other State, then courts frequently remove the geographic restriction.  The need to be able to change residence without restriction is a key factor in military divorces and Federal civil service divorces.

It's important to emphasize that a geographic restriction only affects the "right to change permanent residence" and not the "right to travel."  So, if either parent wants to take the children out of Texas to visit the grandparents or go on vacation, that's okay.  Traveling does not violate a geographic restriction.

For questions about geographic restrictions and other issues in divorce, speak with a qualified divorce attorney.

Author Jim Cramp is a retired active duty colonel and the principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

 


Monday, March 30, 2015

Mediation in Divorce Proceedings

Courts routinely order that the parties attempt to resolve their divorce by mediation prior to scheduling a contested final trial.  One reason courts favor mediation is to help keep the judicial system functioning.  The system would be broken if every case had to go to final trial.  There aren't enough judges and courtrooms to meet the demand. 

Mediation is not arbitration.  In mediation, the parties are not "handed" the answer by the mediator.  Mediation only resolves the case if the parties both agree to the terms of the mediated settlement agreement. 

Sometimes only some of the issues can be resolved in mediation, such as division of the community estate (i.e. how much property and debt each spouse will receive in the decree).   Partial resolution helps "narrow" the issues for final trial.  If children are involved and both parents want primary custody, then that may be the only issue requiring the court's time.  Narrowing the issues can cut the time needed to try a case in half.  Judges appreciate that effort.

Mediation is not all about keeping the judicial system functioning.  It also is about helping the parties feel better about the outcome.  Mediation generally involves give-and-take and the parties are in control of deciding whether they can accept the terms of the agreement.  While neither party tends to get everything they want, each party should get enough so that it's worth compromising.  At final trial, the parties are not in control.  In a contested trial, each party risks all of their objectives.  Each side pleads its case and the court "hands" the parties an answer.  That answer may be better, worse, or about the same as what could have been achieved at mediation. 

For questions about mediation and other issues in divorce, speak with a qualified divorce attorney.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

 

 


Friday, March 20, 2015

Military Divorce: Myth #5, TRICARE Coverage Can Be Ordered by the Court

In this installment of military divorce myths, we'll look at the belief that a court can order the servicemember to provide TRICARE coverage for a former spouse.  False.

There is nothing a court can do to create or deny TRICARE coverage for a former spouse.  Whether a former spouse qualifies for TRICARE coverage is established in Federal law.  There are two rules under which the former spouse may qualify based on the length of the marriage/military overlap -- the "20/20/20" rule and 20/20/15" rule.

The 20/20/20 rule requires at time of divorce the following:

  • The servicemember has at least 20 years of creditable service towards determining retirement pay;
  • The former spouse has been married to the same sponsor/service member for at least 20 years; and,
  • All 20 years of marriage overlapped the 20 years of creditable (Active or Reserve) service which counted towards the servicemember's retirement.

Former spouses qualifying under the 20/20/20 rule are eligible for TRICARE coverage in their own name after divorce.  Eligibility is lost if the former spouse remarries or purchases coverage under an employer-sponsored plan.

The 20/20/15 rule requires at time of divorce the following:

  • The servicememeber has at least 20 years of creditable service towards determining retirement pay;
  • The former spouse has been married to the same sponsor/service member for at least 20 years; and,
  • At least 15 of those years overlap the 20 years of creditable (Active or Reserve) service which counted towards your sponsor's retirement.

Former spouses qualifying under the 20/20/15 rule are eligible for TRICARE coverage in their own name for one year after the date of divorce.  Eligibility is lost in the same manner described above.

Speak with a qualified military divorce attorney if you have questions.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

 

 


Tuesday, March 10, 2015

Military Divorce: Myth #4, Suvivor Benefit Plan (SBP) and Former Spouse SBP are the Same Thing

In this installment of "military divorce myths," we'll look at the belief that, if the servicemember already had elected Survivor Benefit Plan (SBP) coverage for the spouse at time of retirement, coverage for a former spouse continues automatically after divorce .  False.

SBP and Former Spouse SBP are not the same thing.  They are two, distinct annuity plans.  SBP can cover an eligible spouse.  Former Spouse SBP covers an eligible ex-spouse.  Divorce terminates the now ex-spouse's eligibility for SBP.  That's why it is critical that the divorce decree award the ex-spouse Former Spouse SBP.  

Getting Former Spouse SBP awarded in the decree is not enough.  The application for Former Spouse SBP must be received by DFAS-Kentucky within one year from the date of divorce, otherwise eligibility for coverage is lost.  Time matters--and that's why our firm submits the application to DFAS-Kentucky for the former spouse.  

Military spouses looking for a divorce attorney should check to ensure whether their attorney will submit the application for them or if they'll have to do it for themselves.   If the attorney will not submit the application for the military spouse-client, that might be an indicator of a lack of familiarity with the issues involved in military divorce.  You decide.  Choose wisely.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


Tuesday, February 10, 2015

Military Divorce: Myth #3, Federal Law Determines a Former Spouse's Share of Military Retired Pay

In this installment of "military divorce myths," we'll look at the belief that Federal law dictates how much of the Servicemember's military retired pay a Former Spouse gets in divorce.  In other words, it doesn't matter what State a military divorce occurs in.   The outcome always is the same.  False.

This misconception arises from a misunderstanding of the Uniform Services Former Spouse Protection Act (USFSPA), a significant piece of Federal law.  The USFSPA gives States permission to divide military retired pay according to State property laws -- for the most part.  The USFSPA contains a very small set of Federal rules that preempt (i.e. override) State property law.  One significant Federal rule is that States can only divide "disposable retired pay."  Another Federal rule is that "disability compensation" (whether received from the VA or for "Chapter 61" medical retirees) is excluded from "disposable retired pay."  Overall, the point remains that there is no single rule set for dividing military retired pay that plays the same in all 50 States. 

In the end, where you get a military divorce matters -- and how the few Federal rules that override State law play into your divorce matters too!  Speak with a qualified military divorce attorney for details.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


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