San Antonio, TX Family Law and Military Divorce Blog

In the vast majority of cases, the answer to whether there is a "cap" to child support in divorce is, "yes."  The Texas Family Code caps "net resources" available for child support at $8,550.00.  In determining "net resources," the Family Code includes the following:

1. Wages, salary, commissions, overtime pay, tips and bonuses;
2. Interests, dividends, and royalties;
3. Self-employment income;
4. Severance pay, retirement benefits, Social Security benefits (other than Supplemental Security Income or SSI), and VA disability compensation.

In Texas, if one child is at issue (and assuming the paying parent has no other children from prior marriages or relationships for which that parent has a legal duty of support), child support is as follows:

1. One child: 20% of net resources, which equals $1,710.

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If your spouse is designated as your life insurance beneficiary, and you later divorce, the Texas Family Code establishes that your now ex-spouse will not be treated as the beneficiary of your life insurance policy, unless one of three conditions exist:¹

1. Your decree of divorce names the ex-spouse as the beneficiary of your life insurance policy;
2.  You re-designate your ex-spouse as your beneficiary after the divorce; or,
3.  Your ex-spouse is designated to receive your life insurance proceeds in trust for, on behalf of, or for the benefit of a child or dependent of yours or your former spouse.

The provision above does not apply to life insurance policies provided by the Federal Government.²  For example, if a Servicemember divorces, later remarries and neglects to name his new spouse instead of his ex-spouse as his Servicemember's Group Life Insurance (SGLI) beneficiary, the ex-spouse will receive the life insurance proceeds because that person is the named beneficiary.³

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In military divorce, a Servicemember receiving VA Disability Compensation must remember to notify the VA that they no longer have a spouse.  This is done using VA Form 21-686c, which is available on the VA's website (i.e. enter "VA Form 21-686c" into your browser's search and download the form from the VA's website).  The form includes the mailing address to which the Servicemember should mail the form to the VA.

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Active duty retirees are eligible for retired pay immediately upon retirement.  When a Spouse or Former Spouse Survivor Benefit Plan (SBP) annuity has been elected or court-ordered, premiums are deducted from each month's retired pay.  Premiums for active duty retirees are 6.5% of the "base amount."  The base amount is the amount of retired pay insured, which typically is the retirees gross retired pay.

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Since Former Spouse retired pay terminates on the death of the Servicemember, the Survivor Benefit Plan (SBP) is a purchased annuity that provides a monthly payment the partially, wholly or exceeds the Former Spouse's retired pay.  When divorce occurs prior to the Servicemember's eligibility for retirement, the divorce decree must order the Servicemember to elect the Former Spouse as the SBP beneficiary.  Often the decree also orders the Former Spouse to effect a "deemed election" by submitting an appropriate application within one year of the date of divorce.  If the Former Spouse fails to effect a deemed election within one year of the date of divorce, the Servicemember may elect to provide SBP to the Former Spouse at time of retirement out-processing.  It is not uncommon for Servicemember's to be asked to submit copies of any divorce decrees in concert with retirement out-processing to check for any such court-ordered obligations.

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In the current Texas Legislative session, House Bill 93 would repeal the "no-fault" divorce provision in the Texas Family Code (i.e. repeal the "insupportabiity" ground for divorce, which only requires testimony of one spouse that the legitimate aims of marriage have been destroyed and there is no reasonable chance of reconciliation).  The Texas State Bar took a survey of Texas attorneys on their  perspective on whether Texas should repeal the "no-fault" divorce provision and what it might mean.  The survey results included the following:

• 93% of attorneys who responded to the survey opposed the repeal of the no-fault divorce provision.

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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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