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San Antonio, TX Family Law and Military Divorce Blog

Saturday, December 20, 2014

Military Divorce: How Remarriage Impacts the Former Spouse

I'm often asked by the non-military spouse what impact remarriage would have on their former spouse retired pay and former spouse SBP coverage.  The answers differ.

Remarriage has no impact on the entitlement to former spouse retired pay.  The former spouse's share of military retired pay is their separate property.

Remarriage can have a dramatic effect on former spouse SBP coverage.  If remarriage occurs prior to age 55, then eligibility for former spouse SBP coverage is suspended.  Should the marriage end by death, divorce or annulment, then eligiblity is reinstated.  If remarriage occus at age 55 or later, then eligibility for former spouse SBP coverage is not affected one bit.  Consult a qualified military divorce attorney if you have additional 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. 


Wednesday, December 10, 2014

Military Divorce: Former Spouse Survivor Benefit Plan (SBP) Deemed Election

In military divorce, being awarded a Former Spouse Survivor Benefit Plan (SBP) annuity in your decree is not enough.  The decree doesn't create Former Spouse SBP coverage.  It only creates the possibility of coverage.

Department of Defense regulations require that the former spouse or attorney file a "deemed election" within one year of the date of divorce.  Failure to do so will result in loss of coverage.  Too many former spouses have lost this valuable and hard-won benefit for failure to act in timely fashion.

Once the year lapses, a subsequent court order that "clarifies" the right to Former Spouse SBP coverage cannot revive the award.  Failure to file a timely deemed election based on the initial decree is fatal to the cause. 

When hiring a military divorce attorney, make sure the attorney's services include filing the deemed election for you--in addition to filing the application for former spouse retired pay.  The application for deemed election goes to DFAS-Kentucky.  The application for former spouse retired pay goes to DFAS-Cleveland.  Consult a qualified military divorce attorney if you have additional 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. 


Sunday, November 30, 2014

Accessing the Deceased's Safe Deposit Box

Some people believe that storing a Will in a safe deposit box is a bad idea.  They believe that it will be near impossible to get possession of the Will after the box owner's passing.  Not true.

The Estates Code provides bank's authority--even without a court order--to permit certain persons to examine the contents of the deceased's safe deposit box.  Those persons include:

  1. The surviving spouse;
  2. A parent of the deceased;
  3. A decendent of the deceased who is at least 18 years old; or,
  4. A person named as Executor in a copy of the Will that appears valid and is presented to the bank official.

Examination of the contents of the box must occur in the presence of the bank official.  If the original Will is found inside the box, the bank official may deliver it to the clerk of the Probate Court.  The bank official also is permitted to hand it over to the person named in the Will as Executor.  The Executor must provide the bank official with a receipt for the document.  Incidentally, if a life insurance policy is found, the bank official may hand it over to the named Beneficiary.  Likewise, the Beneficiary must provide a receipt for the document. 

The Estates Code also contains provisions for the Court to order examination of the deceased's safe deposit box in cases where the bank opts not to permit inspection without a court order.  Talk with a qualified probate attorney to learn more.

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. 


Thursday, November 20, 2014

Accessing the Deceased's Funds to Help Pay Funeral Expenses

Families occasionally lack funds to pay for a loved one's funeral expenses.  Sometimes the only money available is in the deceased's bank account which is now frozen.  Is there any way to tap into those funds to pay funeral expenses?  Yes.  The Estates Code labels it an "application for emergency intervention."

Not anyone can file an application for emergency intervention with the Probate Court.  Persons who qualify include:

  1. The person named as executor in the decedent's Will (even though the Will has yet to be probated);
  2. The decedent's surviving spouse;
  3. Any devisee in the Will (i.e. a person named to receive a gift); or,
  4. The decedent's next of kin.

The Probate Court will review the application.  Once approved, the Court can order an individual, employer or financial institution holding the decedent's funds to pay those funds directly to a funeral home for:

  1. Funeral and burial expenses not to exceed $5,000;
  2. Resonable attorney's fees for the attorney who obtained the order; and,
  3. Court costs in obtaining the order.

Talk with a qualified probate attorney to learn more about filing an emergency intervention.

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.  


Monday, November 10, 2014

Military Divorce: Basic Allowance for Housing (BAH) Post-Divorce

How does military divorce affect the servicemembers Basic Allowance for Housing (BAH)?  The answer is contained in the Joint Federal Travel Regulation (JFTR), which governs BAH eligibility.

The servicemember remains eligible for BAH at the "with dependent" rate if:

  1. The ex-spouses share joint custody (i.e. joint managing conservatorship in Texas);
  2. The servicemember is the non-custodial parent; and,
  3. The servicemember's child support obligation is equal to or greater than the difference between the BAH-DIFFERENTIAL (BAH-DIFF) rate for the servicemember's grade. 

 

The BAH-DIFF rate is the difference between the non-locality adjusted "with dependent" and "without dependent" BAH rate for the servicemember's grade.  For example, the 2014 BAH-DIFF rate for an E-6 is $292.20.  The 2014 BAH-DIFF rates for an O-4 is $177.60.  As long as the servicemember's child support obligation is equal to or greater than those amounts, they'll continue to draw BAH at the "with dependent" rate post-divorce.

For Attorneys, the reference for this article is the JFTR, Chapter 10, Paragraph 10106.D., "Legal Separation or Court Order Stating Support Amount."

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, October 30, 2014

Reimbursement Claims-Part 3: Prohibited Claims

This is the third post in a three-part series on "reimbursement claims" in divorce.  Recall that all claims for reimbursement are "equitable" in nature, meaning the court has wide discretion in deciding and balancing the outcome.  Some claims, however, cannot be considered by the court since that are prohibited by statute.

Texas Family Code Section 3.409 prohibits courts from considering the following:

  1. Payment of child support, alimony or spousal maintenance;
  2. Living expenses for your spouse or a child of your spouse;
  3. Contributions of nominal value; and,
  4. Payment of student loans owed by your spouse.

The first three categories make sense to most people.  That last one -- payment of your spouse's student loans -- often comes up as a sore spot during discussion with clients.  For better or worse, there really is no room for discussion.  The Texas legislature has handed down its decision.  In divorce, a reimbursement claim for contributions made to compensate for payment of your spouse's student loan debt is dead on arrival.

A close reading of Texas Family Code Section 3.402 adds to the list of prohibited claims any desire to claim an offset for "use and enjoyment" by the community of a spouse's separate property primary or secondary residence (e.g. a spouse's separate property homestead or vacation home)

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. 


Monday, October 20, 2014

Reimbursement Claims-Part 2: Offsets

This is the second post in a three-part series on "reimbursement claims" in divorce.  In Part 1, wife established a reimbursement claim on behalf of the community estate for the reduction in the principal amount of debt on husband's separate property home that accrued during 10 years of marriage.  In Part 1, we determined that the mortgage principal had been reduced by $60,000.  Here, we'll examine the effect of the husband's "offsetting" reimbursement claim for the benefit his separate property home conferred on the community.

For simplicity, let's assume that husband and wife filed a joint Federal income tax return during each year of marriage.  An examination of those tax returns revealed that the community's tax liability had been reduced by $40,000 by virtue of claiming the mortgage interest and property tax paid on husband's separate property home among the couple's itemized deductions.  Thus, husband's separate property estate (i.e. his home) conferred a benefit on the community estate (i.e. reduction in the spouses' tax liability).  Does husband's offsetting claim automatically reduce wife's reimbursement claim on behalf of the community to $20,000?  Not necessarily.

Courts are not required to offset reimbursement claims on a dollar-for-dollar basis.  As the court in Pennick said, evaluating equitable claims for reimbursement "is not merely a balancing of the ledgers" between the spouses' separate and community estates.  As in all "equitable" matters, courts have wide discretion to effect a "just and right" division based on all the factors at play in each parties' divorce.

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.  This blog cites Penick v. Penick, 783 S.W.2d 194 (Tex. 1988).


Friday, October 10, 2014

Reimbursement Claims-Part 1: The Basic Concept

This is the first post in a three-part series on "reimbursement claims" in divorce.  In fashioning a property settlement in divorce, claims for "reimbursement" are a common factor faced by the parties and courts.  In simple terms, a reimbursement claim requests "payback" for the benefit one marital estate conferred on another marital estate, such as when the community estate conferred a benefit on one spouse's separate property estate.  An example will help explain how this might work.

Husband bought a house prior to marriage.  Husband marries wife and they live together in husband's house for 10 years prior to wife filing for divorce.  In her divorce petition, wife asks the court to reimburse the community estate for the benefit it conferred on husband's separate property estate by way of the community's payment of the mortgage during 10 years of marriage.  How does this claim arise?  Well, each spouse's income, which was used to pay the mortgage, is community property.  The claim for reimbursement would hold even if husband was the only wage earner during the marriage because his income is community property.  A plea that "I used 'my' income to pay the mortgage on 'my' house" would ring hollow.

How much is the reimbursement claim?  Let's say the mortgage payment is $1,000 per month, which includes principal, interest, taxes and insurance.  Simple math might suggest that wife's reimbursement claim should be $120,000 ($12K/year for 10 years).  Is that the right amount?  You might think so, but the answer is, "no." 

Texas Family Code Section 3.402 defines reimbursement claims.  For our example (one spouse's separate property home, which is a secured debt), the Code limits the claim to the reduction in principal on the secured debt.  For simplicity, let's say that a comparison of the mortgage statement immediately prior to marriage with the statement immediately prior to divorce revealed that the mortgage principal had been reduced by $60,000.  Thus, the community estate that the court will divide in divorce should be increased in value by $60,000.

Reimbursement is not a "right."  Reimbursements are equitable claims that the court may, but is not required, to consider and grant based upon all the factors at play in specific case before the court.

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.


Tuesday, September 30, 2014

Income Security After Divorce: Collecting Social Security On Your Ex's Earnings Record

Sometimes a survivor's annuity, such as the Survivor Benefit Plan (SBP) or Former Spouse Survivor Annuity (FSSA), isn't available in military or Federal civil service divorce because a the benefit was awarded in its entirety in an earlier divorce.  All hope for income security might not be lost for the newly divorced spouse.  As a divorced spouse, you can collect Social Security on your ex-spouse's earnings record if:

  • Your marriage lasted at least 10 years;
  • You have not not remarried;
  • You are at least 62 years of age;
  • Your Social Security entitlement based on your own earnings record is less than the entitlement based on your ex-spouse's record; and,
  • Your ex-spouse is eligible to receive Social Security retirement or disability benefits--and, if your ex-spouse is eligible for but not yet receiving benefits, then you have been divorced at least 2 years.

Once qualified and receiving benefits, your payments will continue even after your ex-spouse dies.  Visit the Social Security Administration's website for more information as other conditions and restrictions sometimes apply.

Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm.  Jim retired from the U.S. Air Force in the grade of colonel after 29 1/2 years active duty service.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.


Saturday, September 20, 2014

Locating A Missing Life Insurance Policy

Sometimes the person tasked with handling the estate's affairs after the death of a loved one isn't quite sure whether all of the decedent's life insurance policies have been identified.  Substantial amounts of money could be lost by one or more beneficiaries if a claim is never filed against a valid policy.  The Texas Department of Insurance (TDI) offers a service that might help via its "insurance policy locator."

A requester simply has to submit a Consumer Request Form to TDI.  Then, TDI shares the information about the decedent with participating life insurance companies.  A company will contact the requester with policy information if it determines it holds a valid policy on the decedent's life.  According to TDI, most policies are located within 90 days of a request.  If no response is received within 90 days, it generally means that no policy existed or the requester is ineligible to receive the information.

 Click here to view the list of participating companies on TDI's website.  Click here to obtain a copy of the Consumer Request Form from TDI's website.  Click here to read tips from TDI for tracing missing or old life insurance policies.

To avoid this type of dilemma, it's prudent to keep a list of life insurance policies in the same place that the person stores their estate plan, whether it be a Will or Trust document (e.g. in a safe deposit box, for example).

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.


Wednesday, September 10, 2014

Claims During Probate: Medicaid Estate Recovery Program (MERP)

During probate, the executor or heirs often must certify whether the Medicaid Estate Recovery Program (MERP) has a claim against the decedent's estate.  MERP stems from Federal law.  MERP requires States to submit claims against the estate of dededents who received "covered long-term care" for persons age 55 or older paid for by Medicaid.  A few examples of covered long-term care include the following:

  1. Nursing facility services;
  2. Community Living Assistance and support services;
  3. Home and Community-based services; or,
  4. Hospital and prescription drug services received while on the above programs.

Exceptions exist where a MERP claim will not be filed against the estate.  Two examples of exceptions follow:

  1. There is a surviving spouse; or,
  2. There is a surviving child or children under age 21.

In Texas, MERP is administered by the Department of Aging and Disability Services (DADS).  DADS publishes a form that can be sent to its MERP contractor to obtain certification of whether or not a claim exists.  Even if the family is "certain" that no covered long-term care was paid for by Medicaid, obtaining certification is a prudent step during probate.  Click here to get a copy of the MERP certification form from DADS' website.

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.


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