San Antonio, TX Family Law and Military Divorce Blog

The Defense Finance & Accounting Service (DFAS) will reject a decree or domestic relations order (DRO) that attempts to award the former spouse a share of military retired pay if the decree or DRO’s language is ambiguous or otherwise fails to conform to DFAS requirements for a valid award expression.  The 2017 National Defense Authorization Act (NDAA) levied more stringent requirements on decrees or DROs before DFAS can accept them.  Our firm has the expertise necessary to clarify your decree and/or DRO.  We’ve helped many a distraught former spouse obtain a clarified decree and/or DRO that permits them to get paid by DFAS.  Our firm even files the application for the former spouse (noting that a new application is required if the clarified order is submitted more than 90-days after DFAS’ letter notifying the former spouse of the need to obtain a clarifying order).

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Attention to detail matters when first drafting a domestic relations order and entering it with the Court.  Sometimes—whether weeks or months later—a former spouse or alternate payee learns that a domestic relations order requires clarification before it can be accepted by the paying organization such as DFAS, OPM or a plan administrator for a private employer’s 401(k). 

In analyzing the task, sometimes it is discovered that certain information or variables in the original order are flat-out wrong (e.

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Must a party to divorce turn over their medical records in response to a "Request for Production" during discovery?  It depends.

In general, production of medical records in a civil proceeding, such as divorce, is prohibited by invoking the "Physician-Patient Privilege" set forth in Texas Rule of Evidence 509.  The rule, as it applies to civil proceedings, provides, in relevant part that:

1. "Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed."

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Generally, the answer is "no."  Texas Penal Code Section 16.06, Unlawful Installation of Tracking Device," makes it an offense to knowingly install an electronic or mechanical tracking device on a motor vehicle owned or leased by another person.

It is an affirmative defense to prosecution that the person installing the device obtained the effective consent of the "owner or lessee" prior to installation.   So what might that mean if the spouses are co-owners of the vehicle?  Can a spouse give consent knowing the other spouse has primary possession of the vehicle?  That would be risky, especially if the parties have temporary orders in place that give each spouse court-ordered "temporary exclusive possession, use, control and enjoyment" of the motor vehicle in question.

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When planning a move that includes a change of banks, Former spouses receiving direct payments from DFAS must notify DFAS of the new address and new bank info (i.e. bank routing and account number) prior to cutting ties with their old location or bad things can happen.  Notice must be submitted to DFAS in writing at:

DFAS-HGA/CL
Assistant General Counsel for Garnishment Operations
P.O.

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You may be familiar with the Texas "Standard Possession Order or SPO" with the central features being that the non-custodial parent has visitation on:

• the 1st, 3rd, 5th weekend of each months;
• share times on major holidays;
• mom's always get mother's day weekend;
• dad's always get father's day weekend; and,
• the non-custodial parent gets 30 days' extended summer visitation (42 days if the parent live more than 100 miles apart).

The Texas Family Code specifies that the SPO does not apply to children under 3 years of age.  The Code requires the court to craft an order that uniquely suits each youngster.  While the court can consider any factor that it considers relevant, the Code lists prominent factors for the court to consider, including:

• caregiving provided to the child (by each parent) before and during the suit;
• the effect on the child of separation from either party;
• the availability and williingness of the parties as caregivers;
• physical, behavioral, medical and developmental needs of the child;
• the impact and influence of individuals, other than a parent, who will be present during periods of possession;
• the presence of siblings during possession;
• the child's needs to develop healthy attachments to both parents;
• the proximity of the parents' separate residences;
• whether the schedule should incrementally shift toward a SPO-like possession schedule taking into account: (1) the ability of the parents to share in the rights, duties, and responsibilities of parenting; and, (2) inconsistent or minimal contact by a parent; and,
• any other factors that bear upon the best interest of the child.

If you have a child or children under 3 years of age, discuss with your attorney prior to your initial court hearing your thoughts and feelings about an appropriate custom possession schedule.

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You and your spouse have agreed to divorce, but are you sure you've agreed on all areas of major concern?

1. Do you own real property?
2. Do you have children of the marriage who are under 18 or still in high school who live at home?
3. Are substantial joint debts involved (e.g. high balance credit card in both names)?
4. Are the vehicles titled in both names, with the debt in both names too?
5. Are retirement accounts such as an IRA, 401k, military retirement,

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In Federal Civil Service divorce, OPM permits the court to order that the Former Spouse Survivor Annuity premium shall be paid by the Employee or the Former Spouse.  If the court order is silent on the subject, OPM will deduct the premium from the Employee's share of the retirement annuity.  Depending on the level of Former Spouse Survivor Annuity coverage ordered, the premium can be as high as 10% of the Employee's aggregate retirement annuity.  So, who pays the premium is not a trivial matter.

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When couples divorce, it's not uncommon for one or both spouses to want to take care of important details prior to the divorce becoming final.  One important detail can be purchasing a new home to start your new "post-divorce" life.  Caution is warranted here.

In Texas, title to real property follows a rule called "inception of title."  As a general rule, inception of title occurs when the contract to purchase real estate is signed or a down payment that secures a right to purchase.

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What protection, if any, exists for a former spouse receiving military retired pay when a servicemember, who is now a Federal civil servant, opts to waive military retired pay to credit his or her military service toward a Federal Employees Retirement System (FERS) annuity?  Prior to the 1997 National Defense Authorization Act (NDAA), the answer would have been "no protection exists."  The former spouse's award would have been wiped out.  The 1997 NDAA enacted protection for the former spouse.¹

The 1997 NDAA changed the law so a retired servicemember could not waive military retired pay to credit his or her military service toward a FERS retirement annuity unless he or she consents in writing to allow the Director, OPM to deduct and pay the former spouse the same amount from the employee's FERS annuity that is due as former spouse military retired pay.²

Speak with a qualified military and Federal civil service divorce attorney if you have questions.

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The 2017 National Defense Authorization Act (NDAA) made an important change to the definition of disposable military retired pay in the Uniformed Services Former Spouses' Protection Act (USFSPA) found at 10 U.S.C. § 1408.  The change affects the division of property in divorce decrees or domestic relations orders dated December 23, 2016 and after.

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