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San Antonio, TX Family Law and Military Divorce Blog

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. 


Friday, January 30, 2015

Military Divorce: Myth #2, "Remarriage Terminates Former Spouse Retired Pay"

In this installment of "military divorce myths," we'll look at the belief that "a former spouse's share of military retired pay stops on remarriage."  False.

This misconception arises from a blurring of the rules affecting Former Spouse Survivor Benefit Plan (SBP) awards.  More on that in a moment.  For now, a former spouse's share of military retired pay is a property right unaffected by subsequent remarriage.  The former spouse's share of retired pay will only terminate in one of two ways: (1) on death of the former spouse, or (2) on death of the servicemember.

Former Spouse SBP is a purchased annuity that provides an alternate income stream after the servicemember dies and military retired pay stops.  If a former spouse remarries prior to age 55, then eligibility for Former Spouse SBP gets suspended.  This is where by myth comes from -- a blurring of the rules affecting Former Spouse SBP and former spouse military retired pay.  Don't confuse the two.  Before closing, it should be emphasized that if the former spouse's subsequent marriage ends by death, divorce or annulment, then eligibility for Former Spouse SBP gets reinstated.

Speak with a qualified military divorce attorney if you have other 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, January 20, 2015

Military Divorce: Myth #1, "Marriage Must Have Lasted 10 Years"

This is the first in a series of blogs that will explore common myths in military divorce.  In this installment, we'll look at the widely-held belief that "the marriage must have lasted at least 10 years before a former spouse can get a share of the servicemember's retired pay."  False.

This myth stems from a misinterpretation of the "10/10 rule" in the Uniform Services Former Spouse Protection Act (USFSPA).  The USFSPA requires that the marriage must have lasted at least 10 years, and overlapped at least 10 years of military service, before DFAS can pay the court-ordered share of military retired pay to the former spouse.  In simple terms, the 10/10 rule is a rule of administrative convenience.  It prevents DFAS from participating in the administration and enforcement of numerous "small dollar" awards.

All is not lost for the former spouse when the marriage lasted less than 10 years, or overlapped less than 10 years of military service.   Yet, things just got harder.  The court's award remains valid, but the former spouse must get payment directly from the retired servicemember.  This challenges the former spouse in two ways.  First, the former spouse must know where to locate and contact the servicemember at time of retirement and thereafter.  Second, the former spouse must ensure his or her share of military retired pay gets computed properly.  A qualified military divorce lawyer can address these two concerns in the divorce decree to help lessen the challenge.

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, January 10, 2015

Military Divorce: A Look at the Military Retiree Population

A Dep't of Defense (DOD) statistical report on the military retirement system provides a good look at the composition of the military retiree population.  There are slightly more than 2 million military retirees.  Texas leads the nation with the largest military retiree population of 197,880, or nearly 1 of every 10 retirees.   The next three States with the largest military retiree populations are Florida (190,145), California (161,972) and Virginia (153,216).

The San Antonio region figures prominently.  Of all military retirees in Texas, nearly 1 of ever 5 lives in the greater San Antonio region (i.e. 782XX zip code).  It comes as no surprise to those in the San Antonio region that 81% of military retirees in Texas are either Army or Air Force.

Despite our best intentions, divorce sometimes happens.  The size of Texas' and San Antonio's military retiree population makes military divorce a big issue for our region.  When divorce occurs, it is important to find a qualified military divorce attorney who can guide you through the key issues in military divorce, whether you are the retired servicemember or spouse.  Failure to do so can be costly, particularly for the soon-to-be former spouse.  Over the retired servicemember's lifetime, military retired pay can be worth millions.  Important benefits can be lost if, for example, a court's award of Former Spouse Survivor Benefit Plan (SBP) is not timely filed with DFAS.  Other traps and pitfalls linger as well.  

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 having served 29 1/2 years active duty.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.

Note:  The DOD Statistical Report on the Military Retirement System--FY2013 (republished July 2014) can be accessed by clicking here.


Tuesday, December 30, 2014

VA Disability Compensation Not Exempt From Child Support and Spousal Maintenance

Many servicemembers believe that Federal law prohibits any and all garnishment of their VA disability compensation.  Not true.

VA disability compensation cannot be divided in military divorce.  It is not "disposable retired pay" as defined in the Uniform Services Former Spouse Protection Act.

VA disability compensation, however, can be garnished for domestic support obligations, such as alimony ("spousal maintenance" in Texas) and child support.  In fact, Texas Family Code Section 154.062(b)(5) specifically includes VA disability benefits for service-connected disabilities among "net resources" for child support.

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, 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.


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