San Antonio, TX Family Law and Military Divorce Blog

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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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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