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San Antonio, TX Family Law and Military Divorce Blog

Wednesday, January 20, 2016

Divorce & Attempted Reconciliation: How Long Can A Case Be On Pause?

My previous blog discussed steps that attorneys make take to put a divorce case on pause when the parties wish to attempt reconciliation.  To read my previous blog first, click here.  In this blog, we'll answer the question of how long a case can be on pause.

Here's the answer -- there is no absolute time after which a Court must dismiss a case for "want of prosecution" (i.e. dismiss a case based on a prolonged period of inactivity).   As a general rule, a case that demonstrates no activity in roughly a year's time becomes a prime candidates for placement on the "dismissal docket."

Texas Rule of Civil Procedure 165a give the Court authority to place cases on the dismissal docket for want of prosecution.  The rule requires that notice of placement on the dismissal docket and the time and place for the dismissal hearing must be given to each attorney and party whose address is in the Court's records.  If no appearance is made at the hearing, the case will be dismissed.  If an appearance is made and a valid reason is presented for retaining the case, then the Court will enter an order setting deadlines by which all case activity must be completed (e.g. finishing discovery; filing of additional pleading; and scheduling of final trial).

When a case is dismissed, it's flushed from the Court's system.  The case doesn't exist anymore.  If the parties later decided to proceed with the divorce, they'd have to start all over again, unless a Motion for Reinstatement is filed within 30 days of dismissal (and successfully argued).  If retained on the docket, the parties and attorneys need to get moving and meet the deadlines set by the Court for finishing the case.

In my next blog, we'll look at the steps the parties can take if they decide to dismiss the case by their own initiative.

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.

 


Sunday, January 10, 2016

Divorce & Attempted Reconciliation: How Long Case A Case Be "On Pause?"

Occasionally in divorce, the parties wish to try to reconcile while leaving the suit for divorce active in the Court's system.  The three most common questions are: (1) are there any "official" requirements to put the cause on pause; (2) how long can a case be on pause; and, (3) if we decide to end the divorce, how do we do that?  This blog will deal only with the first question: what, if any, official requirements exist to put a divorce case on pause.  The second and third questions will be dealt with separately in my next two blogs.

Regarding the first question, while there are no official requirements for putting a case on pause, my preferred technique is for the two attorneys to file a "Rule 11 Agreement" that agrees to suspend the litigation, pending further notice.  Texas Rule of Civil Procedure 11 specifies that for any agreement between the parties or attorney to be enforceable by the Court, it must be in writing and filed with the Court (hence, the term "Rule 11 Agreement").  In general, the agreement should state the following:

  • That the parties wish to to suspend all litigation activities to provide for a period of time for attempted reconciliation;
  • That during the period of suspension, any pending discovery requests are abated (i.e. on hold, with deadlines to be reestablished if the suspension is later lifted), and neither party will initiate any new discovery requests or make settings for further hearings or final trial;
  • That either party may terminate the suspension of litigation and resume the case upon written notice to the other party, by and through the other party's attorney of record; and,
  • That the Rule 11 Agreement for Suspension of Litigation and an Notice of Termination of Suspension of Litigation shall be filed with the Court.

From a practical perspective, any attempt at reconciliation should be given about 4 to 6 months before the parties decide whether to terminate the divorce.  The 4 to 6 month period is a prudent time frame because a commitment to attempt reconciliation is like falling in love all over again.  It tends to promote a burst of commitment to more kindness and better behavior.  However, and since we humans tend to be creatures of habit, most people tend to slip into old habit patterns somewhere within the 4 to 6 month time period (+/-).  In other words, while long-term positive change in marital behavior is possible, it tends to be difficult to achieve.  Thus, 4 to 6 months is a prudent benchmark for the parties to test if the change each seeks in the marriage has "sticking power."   

 My next blog will address the second question, being how long a divorce case can be on pause.  Stay tuned.

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.

 


Wednesday, December 30, 2015

Recoupment of Overdue Former Spouse Military Retired Pay or FERS Annuity Payments

I get a steady stream of requests from former military spouses and former spouses of Federal Civil Service members for help in obtaining a clarification order that will cause DFAS or OPM to start the former spouse's monthly payments.  Sometimes years have gone by since the military servicemember of civil servant has retired and started receiving retired pay. 

What can and should be done to make things right for the former spouse in the aftermath of military divorce or Federal Civil Service divorce, particularly when the member has long since retired?  First, a clarification order must be obtained and a new application submitted to DFAS or OPM, as it applies, so that the former spouse can begin to receive the monthly payments that rightfully have been theirs all along.  Unfortunately, neither DFAS nor OPM will calculate arrears or pay arrears on payments long since overdue.

Presuming the divorce decree or accompanying domestic relations order named the military servicemember or civil servant as "constructive trustee" for receipt and transfer of payments due to the former spouse, relief is available.  Texas case law has established that the member named "constructive trustee" owes a fiduciary duty to the former spouse to see that he or she receives payment1.  The former spouse can bring suit for "breach of fiduciary duty2." 

The Civil Practices and Remedies Code establishes that a suit for breach of fiduciary duty carries a four year statute of limitations3.   Thus, the former spouse can sue for recoupment of payments the servicemember or civil servant received, but never transferred, for up to four years from the date of filing the lawsuit for breach of fiduciary duty4

Designation as "constructive trustee" and its implication in permitting a suit for breach of fiduciary duty with a four year statute of limitations is a distinction of huge importance.  Otherwise, and what many opposing attorneys will try to argue, is that the two year statute of limitations under the Texas Family Code governs5.  A former spouse and his or her attorney should not bite on that.  Failing to file and argue the correct cause of action (i.e. breach of fiduciary duty with a four year statute of limitation instead of enforcement of a property division with a two year statute of limitation) can cut in half the relief available to the former spouse.  Speak with a qualified military divorce or Federal Civil Service divorce attorney for more information.

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.

___________________________

Note1See Preston v. Preston, 2004 Tex. App. LEXIS 7376 at *5-6 (Tex. App.—San Antonio, Aug. 18, 2004, no pet.) (memo op.).

Note2Id.

Note3:  Civ. Prac. & Rem. Code Sec. 16.004(a)(5).

Note4See Preston v. Preston, 2004 Tex. App. LEXIS 7376 at *5-6.

Note5:  Tex. Fam. Code Sec. 9.003.

 


Sunday, December 20, 2015

We Can Help When DFAS Rejects the Forner Spouse's Application for Retired Pay

It happens all too often that the Defense Finance & Accounting Service (DFAS) will reject a former spouse's application for the share of military retired pay awarded to him or her in a military divorce.  This occurs when the award expression in the divorce decree, or domestic relations order (DRO) that often complements the decree, is missing one or more pieces of information DFAS needs to compute the former spouse's share.  The bad news typically arrives when DFAS sends the former spouse a letter informing that he or she needs to get the court to issue a clarification order that provides the missing information.

We can help.   The requirements proper division of military retired pay in divorce are detailed in Dep't of Defense Financial Management Regulation 7000.14-R, Volume 7B, Chapter 29, Former Spouse Payments From Retired Pay.  We understand the DODFMR's labyrinth of requirements, which can be very confusing to those who have never done a military divorce or only infrequently deal with the subject matter.  Let us "break the code" for you.

For a former spouse client, we'll determine the error, obtain the missing information, and work with either the ex-spouse or their attorney to get a clarification order entered with the court.  As needed, we prepare and re-submit the former spouse application for retired pay to DFAS (i.e. re-application is necessary if more than 90 days has elapsed since the initial application).

We also provide support services to other attorneys as they endeavor to do the scope of work described above for their client.  In these cases, we work behind the scenes to help other attorneys succeed. 

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.


Thursday, December 10, 2015

Overseas and Facing a Militay or Federal Civil Service Divorce / Family Law Issue?

Our firm has helped many military or Federal Civil Service member who are PCS or deployed overseas handle an array of family law matters such as:

Our firm's ability to service and counsel client needs is global.  We've helped military or Federal Civil Service clients who are either PCS, deployed to, or with issues tied to assignment in countries such as:

  • Afghanistan
  • Germany
  • Honduras
  • Italy
  • Japan
  • Mexico
  • South Korea
  • United Arab Emirates

Our firm's approach is unique, in ways as follows:

  • We use a cloud-based case management system that provides the client with 24/7 access to all case-related documents; an ability to upload documents to the system in a secure environment; an ability to view a calendar of scheduled events; and, an ability to communicate securely via an inter-system messaging capability.
  • We routinely schedule Skype sessions with overseas clients because we understand that high-quality, interactive "face-to-face" communication between the attorney and client is important.
  • We routinely have overseas clients appear at mediation or trial remotely via Skype to facilitate their "personal presence" at these critical events.

If you are a military or Federal Civil Service member who is PCS or deployed overseas and looking for a family law firm to help with an issue in the courts of Bexar and surrounding counties, you are invited to send us a consultation request through our website to arrange a free consult.  We'll be glad to set up a convenient time to Skype with you to learn more about your situation, answer questions, and discuss strategies for a way forward.

Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm helps clients in the greater San Antonio region, across the United States, and globally with family-law related matters the courts of Bexar and surrounding counties.

 


Monday, November 30, 2015

Military Divorce: Former Spouse Suvivor Benefit Plan (SBP) Is Not Always Available

First, you should know that the former spouse's military retired pay payments stop when the servicemember dies.  Former spouse SBP is a purchased annuity that, if available, can replace that stream of payments.  To have former spouse SBP protection, it must have been ordered as part of your decree and applied for in a timely manner

There are two scenarios where former spouse SBP cannot be awarded as part of a military divorce, as follows:

  1. Spouse SPB was not elected by the servicemember at time of retirement (which would have required the spouse's consent); and,
  2. Former spouse SBP was awarded to a prior spouse in a prior divorce; the annuity cannot be split or awarded twice.  The early bird gets the whole worm.

You--and your divorce attorney--should know that any attempt to have the court order the servicemember to make the former spouse the beneficiary of the servicemember's SGLI or VGLI life insurance policies is unenforceable.  That fact has been established in both Federal law and a U.S. Supreme Court decision.  Given that fact, asking the court to order the servicemember to provide a commercial insurance policy or annuity are the best options to protect the former spouse's financial security after the servicemember dies and former spouse military retired pay stops. 

For more information about former spouse SBP, speak with a qualified military divorce attorney

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.

Note:  For attorneys, see 38 U.S.C. Sec. 1970(g) and Ridgway v. Ridgway, 454 U.S. 46 (1981).


Monday, November 23, 2015

Who Pays the Former Spouse Survivor Benefit Plan (SBP) Premium in Divorce?

It depends.  In military divorce, Texas case law establishes that courts have authority to order the Servicemember to pay the SBP premiums and doing so does not equate to impermissible permanent alimony.  The Former Spouse, however, can be ordered to pay as well.  In short, there is no automatic answer since either outcome is possible.

It is important to note that DFAS must deduct the premium from the Servicemember's military retired pay.  Any provision in a divorce decree that orders DFAS to deduct the premium from the Former Spouse's share of retired pay is unenforceable.  DFAS will ignore it.

That means that if the Former Spouse is ordered to pay the premium, his or her payment (or, in reality, repayment) can only happen in one of two ways, as follows:

  1. Direct reimbursement, where the Former Spouse writes a check to the Servicemember each month, or
  2. Reduction in the percentage of retired pay awarded to the Former Spouse that offsets the cost of the SBP premium.

Whichever of the two options is contemplated, the Former Spouse should ensure that he or she does not overpay.  The premium is always 6.5% of the "base amount," with the base amount being the amount of retired pay being insured for future SBP annuity payments.  If the Former Spouse's writes a check for the full cost of the premium or permits his or her percentage award to be reduced by the full 6.5%, then he or she will ALWAYS be overpaying the cost of the premium.  This stems from the fact that the cost of the premium is a component in DFAS computing the Servicemember's "disposable retired pay."  And, the Former Spouse's retired pay is a percentage of the Servicemember's disposable retired pay. 

So, a 6.5% reduction is NEVER the right answer.  A more nuanced calculation will be required to determine exactly how much the Former Spouse's percentage award should be reduced to offset the portion of the premium not reflected in disposable retired pay. 

If you are a soon-to-be Former Spouse, speak with a qualified military divorce attorney to ensure that, if you will be paying the premium, you don't overpay.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

 

 


Tuesday, November 10, 2015

Military Divorce and the Servicemember's Involuntary Separation Pay

The Texas Supreme Court decided in a 1979 case that involuntary separation pay is not community property and, therefore, not divisible in divorce.  In its decision, the Supreme Court rejected the former spouse's argument that involuntary separation pay is a property right that, like military retired pay, should be divided based on the length of the marriage-military service overlap.  Upon reviewing the Congressional legislative history on the matter, the Supreme Court concluded that Congress intended involuntary separation pay as an unearned gratuity--akin to a a gift, which makes it the servicemember's separate property.

Whether you are the servicemember or spouse, there are many unique issues that distinguish military divorce from a "civilian" divorce.  For questions on this or other related topics, speak with a qualified military divorce attorney

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

Note: For attorneys, this blog post is based on the case, Perez v. Perez, 587 S.W.2d 671, 672 (Tex. 1979).


Sunday, November 1, 2015

Amicus Attorney versus Attorney Ad Litem - What's the Difference?

Sometimes in a suit affecting the parent-child relationship (e.g. a custody dispute associated with a divorce or between unmarried parents), the court might appoint an Amicus Attorney or Attorney Ad Litem (and, on rare occasion, both).   The different focus of their respective roles is not well understood.

The focus of an Amicus Attorney is to provide legal services to the Court.  The Amicus Attorney helps the court determine and protect the child's best interests.  The Amicus Attorney's focus is not on providing legal services to the child.  The child (or the child's parent) is not the Amicus Attorney's client. 

The focus of an Attorney Ad Litem is to provide legal services to a person, such as a parent or the child.  Whether the client is the parent or the child, the Attorney Ad Litem owes the client complete loyalty, confidentiality in all communications and diligent and competent representation.

When the court appoints an Amicus Attorney or Attorney Ad Litem, the attorneys for the Petitioner and Respondent will work with these court-appointed attorneys while still advocating for their respective client's objectives.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

 


Tuesday, October 20, 2015

Finishing a Pro Se or "Do It Yourself" Divorce Quickly

I frequently get calls from people who filed their own divorce but need help finishing the job.  The need for help generally stems from one of two sources:

  1. The forms have  become overwhelming and confusing;
  2. The Bexar County Staff Attorney's Office informs the person that the wait time for a court date is approximately 6 months after they turn in their completed paperwork - and they want to get divorced "now."

Regardless of the reason, we offer a very cost effective, flat fee solution to finishing the job.  Our services always include drafting a streamlined and legally accurate Final Decree of Divorce (because the pro se forms, frankly, present a mangled and confusing array of options and most people's do-it-yourself paperwork really won't produce the outcomes they intended).  When transfer of real estate is involved (e.g. one spouse is giving the other the marital home), we also prepare the deed paperwork and ensure it gets properly recorded in the county's official deed records.  Sadly, I have yet to see someone's do-it-yourself paperwork that is poised to properly transfer legal title to real estate.  That shortcoming, of course, wouldn't become apparent until months or years later when the spouse who got the house tries to refinance or sell it.

How fast can I help someone get divorced?  Assuming the 60-day waiting period has elapsed, I've gotten a formerly pro se client divorced in as little as four days.  In most other cases, the job's done in about two weeks.  It all depends on where the client is in the time line and whether the soon-to-be-ex-spouse will cooperate in quickly correcting the paperwork (and in some cases, no cooperation from the soon-to-be-ex is even necessary).  How long it will take depends on the specific facts of your situation.  We'll evaluate your case at a free consult to help you decide.  All you need to do is bring in all of your paperwork for our review.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 

 


Monday, October 12, 2015

Grandparents Raising Grandchildren: Obtaining Custody (i.e. Managing Conservatorship)

I've recently helped several grandparents who were raising their grandchild get legal custody (formally known as "managing conservatorship").   The most common basis for bringing a suit for managing conservatorship is when the parents have voluntarily relinquished actual care, custody and control of the child to the grandparents for at least six months' time.  It doesn't matter whether no court order exists or an existing court order granting one of the parents "primary managing conservatorship" must be modified.  The key criterion remains the same -- the grandparents have had actual care, custody and control for at least six months based on the parents' voluntary relinquishment. 

Know that if the grandparents obtain managing conservatorship, the court may still order one or both parents to pay child support.  In general, the court still will provide the parents with some visitation rights unless serious issues such as documented child abuse are present.

In some cases, time lines apply for bringing the lawsuit.  Speak with a qualified family law attorney for more information about grandparents obtaining managing conservatorship when a grandchild has been relinquished to their care for at least six months.

Author Jim Cramp is a retired active duty colonel and principal attorney at the Cramp Law Firm.  The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region. 


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