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Veteran Mother Comes Home

San Antonio, TX Family Law and Military Divorce Blog

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. 


Wednesday, September 30, 2015

UCCJEA: How It Can Help Texas Retain Jurisdiction A Child Custody Determination

In my previous post, I introduced the Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA.  In general, the UCCJEA's central rule is that only the "home state" of the child has jurisdiction to make an initial child custody determination.  The "home state" is the state in which the child lived with a parent or person acting as a parent for at least six consecutive months prior to divorce or other child custody litigation.  How does this legal scheme help Texas retain jurisdiction when a parent takes children across state lines?

Here's a common scenario that might help explain.  John's in the military and stationed at Ft. Sam Houston in San Antonio.  John and his wife Mary, and their two children, have been in San Antonio for the past two years.  Unfortunately, the marriage isn't working out.  Mary decides to leave the marriage and "go home" to Nevada, taking the children with her.

Whether John files for divorce in Texas or Mary files for divorce in Nevada, only Texas has jurisdiction to make the initial child custody determination under the UCCJEA (which every state but Massachusetts recognizes) until the children have lived in another state (like Nevada) for six months.  The key point being that Texas is where the children lived with a parent for at least six consecutive months if John would decide to start litigation within weeks or a few months of Mary's departure. 

UCCJEA jurisdictional matters can become quite complicated.  For now, speak with a qualified divorce attorney for more information about how the UCCJEA might impact your decision situation.

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. 


Sunday, September 20, 2015

UCCJEA: Avoiding Jurisidictional Disputes Among States in Making Child Custody Determinations

In a previous blog, I highlighted that military and Federal employees (and their spouses) absent from Texas on public service may still file for divorce in Texas if Texas remains their "domicile" (i.e. permanent home to which they intend to return).  Click here to access that blog post.  The fact that a public servant serving outside of Texas can file for divorce in Texas doesn't automatically give Texas jurisdiction to determine the initial orders for custody and visitation of the children.  Which states has jurisdiction to make the initial custody orders is determined by a uniform law called the UCCJEA.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted in every state except one, that state being Massachusetts.  Massachusetts may soon join the fold as it has active legislation aimed at approval.  According to its authors, the purposes of the UCCJEA are to:

  1. Avoid jurisdictional disputes among states;
  2. Promote cooperation between courts of different states in interstate custody disputes; and,
  3. Discourage use of the interstate system to: (a) deter child abductions; (b) avoid re-litigation of custody decisions made by other states; and (c) facilitate enforcement of custody orders made by other states.

Under the UCCJEA, only the "home state" of the child has jurisdiction to make an initial custody determination (with few exceptions).  The "home state" is the state in which a child lived with the parent (or person acting as a parent) for at least the six months immediately before "commencement" of a child custody proceeding.  A proceeding "commences" upon the first filing of legal papers in a dispute touching upon custody (e.g. suit for divorce or suit for custody).

So, a military member or Federal employee (or spouse) who is a Texas domiciliary, but absent from Texas because of Federal service, may find that the state in which they currently reside--and only that state--has jurisdiction to make an initial custody determination. 

The UCCJEA contains narrow exceptions to its application.  And in other cases, some specific facts of the case might bear upon how the UCCJEA gets applied.  Some of these twist and intricacies will be the topics of later blogs.  For now, speak with a qualified military or Federal civil service divorce attorney for more information about how the UCCJEA might impact your decision, as a military or Federal employee (or spouse) on duty outside of Texas, to file for divorce in Texas.

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. 


Thursday, September 10, 2015

Texas Domiciliary Absent on Public Service May Still File for Divorce in Texas

To maintain a suit for divorce in Texas, one of the parties must be living in Texas for six months and the county of filing for 90 days prior to filing the suit.  Sometimes that's not possible for military members and other Federal employees who are absent on public service.  All is not lost.  The Texas Family Code Section 6.303, "Absence on Public Service," provides and exception for these public servants and their spouses.

Military members and other Federal employees serving outside of Texas can still file for divorce in Texas if Texas is their "domicile" (i.e. if Texas is considered to be the permanent home they intend to return to after completion of public service that compels their absence).  The same right exists for a spouse who is a Texas domiciliary but absent because of the other spouse's public service.  Perhaps two examples will help clarify.

Example #1.  John grew up in Bexar County Texas and considers it to be his domicile, or permanent home.  John has been living outside of Texas for the last 8 years due to three military assignments.  His first assignment was in Germany.  The second was in California.  While assigned to and residing in California, John met and married Mary.
John and Mary are now living in North Carolina, on John's third military assignment.   Sadly, the marriage is not working out.  John may, if he wishes to do so, file for divorce in Bexar County, Texas.  The time John has spent outside of Texas and Bexar County does not count against him since his absence was driven by military service.

Example #2.  Sally grew up in Bexar County, Texas and considers it to be her domicile or permanent home.  Sally met and married William, a Federal employee (Dept of Homeland Security) while William was stationed in San Antonio.  Despite being stationed at San Antonio, William always considered Syracuse, New York to be his domicile or permanent residence.  Eventually, the Dept of Homeland Security reassigned the couple to duty Ohio.  Sadly, the marriage is not working out.  Sally may, if she wishes to do so, file for divorce in Bexar County, Texas.  The time Sally has spent outside of Texas and Bexar County does not count against her since her absence was driven by her spouse's public service.

Despite having the right to file in Texas, there may be reasons for a Texas domiciliary absent by reason of public service for not doing so.  Other important jurisdictional issues may apply that affect children and/or property.  Speak with a qualified military or Federal civil service divorce attorney before deciding whether filing in Texas is best based on the facts of your specific situation.

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. 

 

 

 

 


Sunday, August 23, 2015

Can A Court Order Payment of College Expenses?

In a divorce proceeding, can a Texas court order one or both parents to pay future college expenses as additional child support?  No.  The court has no authority to order either parent to support a child once they emancipate at the later of attaining 18 years of age or graduating high school.  An exception exists for a disabled child incapable of self-support, but we'll skip that discussion and focus only on payment of college expenses for a normal, healthy child.

All is not lost, however.  The parties can agree to do things "contractually" that a court has no authority to compel them to do.   So, it is possible to include in a divorce decree an agreement for payment by one parent, or allocation among the parents, of college expenses.  The agreement would have to be worded such that it is binding and enforceable -- not as child support -- but as a contract.  It should be noted that it's possible to include in the contract conditions on payment of college expenses, such as that the child maintain a certain grade point average or "top out" at a maximum age (e.g. 22, 23, or 24 yrs old) whether or not the child has graduated college.  If the condition occurs, the contractual obligation to pay could terminate.

See a qualified family law attorney to ensure that any agreement to pay college expenses (and any conditions placed on the agreement) are properly worded so they are binding and enforceable as a contract.  Realize that failure to honor the contract will not be punishable by contempt (as with failure to pay child support).  The correct remedy would a suit for breach of contract that seeks damages (i.e. a money judgment)).

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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