San Antonio, TX Family Law and Military Divorce Blog

This is the second in a two-part blog.  This second blog focuses on the two tracks available for finishing a divorce when: (1) the other spouse's whereabouts are unknown; (2) the other spouse has been served by "Citation by Publication"; and, (3) the other spouse failed to file an answer or other responsive pleading.  Before reading this blog, you might want to glance at the first blog by clicking Read more . . .

The law requires that the spouse you are suing for divorce (i.e. the Respondent) be served with a copy of the divorce petition and afforded an opportunity to respond.  How can you meet that requirement when the whereabouts of the other spouse are unknown?

In these situations, the law permits the other spouse to be served with legal notice by "citation by publication."  Citation by publication involves posting the legal notice involving the petition for divorce in a local newspaper.

Occasionally I get asked whether a partner from a long-time cohabitation relationship can ever qualify for court-ordered "spousal" maintenance?  The answer is, "no."  Section 8.061 of the Family Code makes clear that "an order for maintenance is not authorized between unmarried cohabitants under any circumstances.

If you appointed your spouse as your Agent under a Statutory Durable Power of Attorney, divorce terminates your now ex-spouse's authorities.  The only exception is where the Statutory Durable Power of Attorney expressly provides otherwise.

While termination of the ex-spouse's authority occurs "by operation of law," it is prudent for the principal to direct the ex-spouse / former Agent to surrender the now defunct Statutory Durable Power of Attorney.  The principal might also wish to take certain actions to notify financial institutions and other important entities of the termination of the Agent's authority to act since these institutions are not liable to the principal unless they have "actual knowledge" of the Agent's termination.

Speak with a qualified divorce / family law and estate planning attorney for further information on this and related topics.

Recently I've had a flurry of calls from active and retired military grandparents who, having gained possession of a grandchild, need help making the grandchild eligible for TRICARE enrollment.    If the grandchild isn't "adopted" by the grandparents, then in DOD regulations they need to qualify as a "legal ward" to be eligible.  While each service has its own regulations enacting DOD policy, I'll refer to Air Force Instruction (AFI) 36-3026, Identification Cards for Members of the Uniformed Services, Their Eligible Family Members, and Other Eligible Personnel.   Other service regs, of course, state the same requirements, because they stem from DOD policy.

The AFI outlines requirements for a "Legal Ward" as follows (paraphrased for ease of understanding) ¹:

• An unmarried child less than 21 years of age, or less than 23 years of age if in college;
• The military member has been designated by a court of competent jurisdiction as the "managing conservator" of the child; and
• The court order specifies that the length of conservatorship is not less than 12 consecutive months or permanently.

Here is a scenario in which I recently helped three military blended-families get things in order for overseas reassignment from the San Antonio area (two to Germany and one to a Pacific location).   The scenario looks like this:

1. The military member's spouse has children from a previous marriage or relationship (i.e. the military member now has stepchildren).
2. The spouse never got a court order that gave him or her the following

As a general rule, Texas courts do not award post-divorce spousal maintenance easily.  When awarded, however, the maximum amount the law allows is the lesser of $5,000 per month or 20% of the paying spouse's average monthly gross income.

The Family Code specifically exempts VA disability compensation from being counted among average monthly gross income.  See Tex. Fam.

In Texas, estates of military servicemembers who die in active service in a combat zone are exempt are exempt from the following fees:

1. Any fee for filing for probate of the deceased servicemember's Will; and,
2. Any fee charged by the probate court for rendering its normal services.

"Combat zones" are designated by the President by Executive Order under authority granted by 26 U.S.C. Section 112, which is the section of the IRS code that excludes gross compensation received in a combat zone from taxable income.  Currently, there are three designated "combat zones" (including airspace above) as follows:

• Arabian Peninsula Areas, beginning Jan. 17, 1991 -- the Persian Gulf, Red Sea, Gulf of Oman, the part of the Arabian Sea north of 10° North latitude and west of 68° East longitude, the Gulf of Aden, and the countries of Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates.
• Kosovo area, beginning Mar. 24, 1999 -- Federal Republic of Yugoslavia (Serbia and Montenegro), Albania, the Adriatic Sea and the Ionian Sea north of the 39th Parallel.
• Afghanistan, beginning Sept. 19, 2001.

Information on the three areas above and others previously designated as combat zones is available from the IRS.  Speak with a qualified Wills, estates and probate attorney to learn more.

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 firms also provides Wills and Estates and Probate services.

If after reasonable diligence you are unable to locate your spouse, it remains possible to have them served with legal process for divorce.  The court must consider an affidavit from the spouse seeking the divorce, or his or her attorney, that describes the due diligence before authorizing "Citation by Publication."

As described in Family Code Section 6.409, Citation by Publication in a divorce suit with no children an no appreciable property occurs by posting notice on the courthouse door for a minimum of seven days.  If the missing spouse does not file an answer in response to the notice (which rarely occurs), the court normally must appoint an attorney (called an "attorney ad litem") to represent the interests of the missing spouse.  If, however, the spouse petitioning the court for divorce, or his or her attorney, files an additional affidavit under oath with the court stating that there are no minor children and no appreciable property, the court may dispense with the appointment of an attorney ad litem.  This helps save significant time and cost for the spouse/petitioner.

As in every other divorce, the court cannot grant the divorce until a minimum of 60 days have elapsed since the filing of the original petition.  Other requirements may apply depending on the specific facts of your situation.  Speak with a qualified divorce attorney to see if this quick and convenient route might be available to you.

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 firms also provides Wills and Estates and Probate services.

In my last blog, we looked at how spouses can dissolve the community estate and create only separate property by executing a Partition & Exchange Agreement.  To read that blog, click here.  I mentioned that in this next blog, we'd look at a scenario where executing a Partition & Exchange Agreement may be a good option in some military divorces.

Sometimes in military divorce, the issue of permitting the soon-to-be-former-spouse the opportunity to quality as a "20/20/20" or "20/20/15" spouse looms large with respect to continued health insurance (i.e. TRICARE).  Qualification as a 20/20/20 spouse means that an unremarried former spouse qualifies to get his or her own ID card and lifetime TRICARE benefits.  Qualification as a 20/20/15 spouse means that an unremarried former spouse qualifies for one-year of TRICARE benefits post-divorce.  To read more directly from TRICARE's website, click here.

By executing a Partition & Exchange Agreement -- that should include "freezing" computations for the division of military retired pay and division of Thrift Savings Plan (TSP) sums, for example -- the servicemember can create an absolute limit to his or her financial obligations in divorce, yet permit the divorce to be entered months later in order to facilitate the soon-to-be-former-spouse who is near, but not yet at, either the 20/20/20 or 20/20/15 benchmark, reach that important milestone. 

To learn more, speak with a qualified military divorce attorney about how a Partition & Exchange Agreement might be a good option in your situation.

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 firms also provides Wills and Estates and Probate services.

The Texas Constitution and the Texas Family Code both provide that spouses may, at any time, agree to dissolve the community/marital estate so that each spouse possesses only his or her separate property.  This is done through a Partition and Exchange Agreement.

The Partition and Exchange Agreement can, among other things, accomplish the following:

• Identify now existing or after-acquired property as a spouse's separate property;
• Transfer the separate property of one spouse to become the separate property of the other spouse; and,
• Provide that each spouse's future income from his or her separate property remains that spouse's separate property (i.e. the normal rule is that income from separate property is community property; this provision alters that rule).

A Partition and Exchange Agreement contains requirements and features as follows:

• It must be in writing;
• It must be signed by the parties voluntarily after fair and reasonable disclosure of each spouse's assets and debts (or waiver of any such disclosure);
• It is enforceable without "consideration" (i.e. consideration is a term from contract law that means a party to a contract must give something of value to the other party that induces that party to enter into the contract; the consideration given may be money, property, or a promise of performance, for example);
• It cannot be used as a vehicle to defraud creditors; any such provision in a Partition and Exchange Agreement that attempts to defraud a creditor is void;
• It does not require the Court's approval to be valid and enforceable.

The reasons why spouses might consider entering into a Partition and Exchange Agreement are many and varied.  In my next blog, we'll look at one particular scenario that applies to a military family thinking about divorce. 

Speak with a qualified family law attorney to learn more about your unique circumstances may or may not benefit from a Partition and Exchange Agreement.

Author Jim Cramp is a retired active duty colonel and founder and principal attorney at the Cramp Law Firm, PLLC, serving clients in throughout the greater San Antonio region, across the United States, and globally.  The firm's main areas of practice include Family Law, Military Divorce, Federal Civil Service Divorce, Wills and Estates, and Probate.