San Antonio, TX Family Law and Military Divorce Blog

Most military retirees, Federal civil service retirees and recipients of VA disability compensation will receive a 2.8 percent cost of living adjustment in their payments due on or about January 1, 2019 and throughout 2019.

 

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Is it possible to divorce a military member who has been served with "legal process" but has not filed and answer or otherwise entered an appearance in the case?  Yes, but extra steps are required because of protections afforded the military member against a default judgment under the Servicemembers Civil Relief Act (SCRA).¹

When a military member has not answered or appeared, the SCRA requires that the Court appoint an Attorney Ad Litem to represent the member's interests before a default judgement may be granted.  Failure to do so may be grounds for having the divorce decree vacated.

Who pays for the Attorney Ad Litem?  Regrettably, the answer is the spouse seeking the divorce (commonly known as the Petitioner).  There are additional factors to consider, so ensure you speak with a qualified military divorce attorney if you believe you will (or already are) facing this situation.

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The Texas Family Code contains no provision for "legal separation."  Nevertheless, it is possible for spouses to contract for rights, duties and obligations contained in a properly executed separation agreement.

To be valid and enforceable, the separation agreement should be:

1. In writing;
2. Signed by the spouses;
3. Entered into without coercion, duress, or undue influence;
4. Conform with the requirements for a Partition and Exchange Agreement if community property is intended divided and become each respective spouse's separate property, and,
5. Be fair and equitable.

A separation agreement executed or existing while the spouses are still living together is void as a matter of public policy.  The spouses must be living apart at the time of execution of the separation agreement, or be living apart at the time one spouse seeks to enforce the terms of the separation agreement.

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. 

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I'm often asked the question of whether a Court can order the Servicemember to transfer a portion of his or her G.I. Bill educational benefits to the soon-to-be ex-spouse in divorce.  The answer is a clear, "no."  Federal law prohibits a State Court from treating G.
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What is the difference between a divorce and an annulment of a marriage?  Divorce is based on a defect that provides "grounds" for divorce that emerges during the marriage.  The most basic ground for divorce is "insupportability."   Insupportability is Texas' version of "no-fault" divorce; it simply means the bonds of marriage have been broken to the point that there is no reasonable chance of reconciliation.  Other grounds for divorce include "adultery" and "cruelty,"  for example.

An annulment is based on a defect that existed prior to the marriage that makes the marriage voidable.

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Military divorce and Federal Civil Service divorce involves more than division of the Servicemember's disposable military retired pay or the Federal Employee's annuity.  In military divorce, it also involves treatment of the Former Spouse Survivor Benefit Plan annuity.  In Federal Civil Service divorce, it also involves treatment of the Former Spouse Survivor Annuity.  Failure to expressly award or deny the Former Spouse Survivor Benefit Plan annuity or Former Spouse Survivor Annuity in the decree means the parties become tenants in common in the undivided community asset which is subject to future division.¹

A Former Spouse may bring a post-divorce suit for division of the undivided asset under Texas Family Code Section 9.

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In military divorce, when the former spouse dies before the military retiree, former spouse retired pay payments stop.  The monthly payments that were going to the former spouse return to the military retiree.  How do you notify DFAS to make this happen?

DFAS requires written documentation regarding the death of a former spouse that includes a copy of the death certificate.
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Sometimes in divorce, the question of "can I change my name at divorce to anything I want?"  The answer is, "no."  Texas Family Code Section 45.105 governs names changes in divorce.  The code states the party may request a name change to "a prior used name."  If you've been married more than once, you can change your name to a name used in a previous marriage or your maiden name.
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 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 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).

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Under all conditions, former spouse retired pay stops at the servicemember's death. SBP is a purchased annuity that provides a replacement stream of income to a former spouse who outlives the servicemember.  

The SBP "base amount" is the amount of the servicemember's gross retired pay that is insured.  By default, the base amount is the full amount of retired pay.  The base amount can be anything between the servicemember's gross retired pay but not less than $300.

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Spoliation is the destruction of evidence.  In divorce, this mainly centers on destruction or deletion of social media content and text messages or video stored in a party's cell phone.  In order to prove spoliation, the party making the allegation must demonstrate that the party alleged to have committed spoliation had a duty to preserve the information.  People generally understand that a duty not to destroy or delete evidence exits once litigation starts.  Courts often include a prohibition against spoliation in "standing orders" that must be attached to an original petition or counterpetition.

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