Federal Civil Service Divorce

In the vast majority of cases, the answer to whether there is a "cap" to child support in divorce is, "yes."  The Texas Family Code caps "net resources" available for child support at $8,550.00.  In determining "net resources," the Family Code includes the following:

1. Wages, salary, commissions, overtime pay, tips and bonuses;
2. Interests, dividends, and royalties;
3. Self-employment income;
4. Severance pay, retirement benefits, Social Security benefits (other than Supplemental Security Income or SSI), and VA disability compensation.

In Texas, if one child is at issue (and assuming the paying parent has no other children from prior marriages or relationships for which that parent has a legal duty of support), child support is as follows:

1. One child: 20% of net resources, which equals $1,710.

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If your spouse is designated as your life insurance beneficiary, and you later divorce, the Texas Family Code establishes that your now ex-spouse will not be treated as the beneficiary of your life insurance policy, unless one of three conditions exist:¹

1. Your decree of divorce names the ex-spouse as the beneficiary of your life insurance policy;
2.  You re-designate your ex-spouse as your beneficiary after the divorce; or,
3.  Your ex-spouse is designated to receive your life insurance proceeds in trust for, on behalf of, or for the benefit of a child or dependent of yours or your former spouse.

The provision above does not apply to life insurance policies provided by the Federal Government.²  For example, if a Servicemember divorces, later remarries and neglects to name his new spouse instead of his ex-spouse as his Servicemember's Group Life Insurance (SGLI) beneficiary, the ex-spouse will receive the life insurance proceeds because that person is the named beneficiary.³

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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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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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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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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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 Our firm has helped many military former spouses clarify a domestic relations order so that DFAS will begin to pay former spouse retired pay.  We've done the same countless times for former spouses of Federal Civil Service employees so OPM will begin to pay the former spouse annuity.

Sometimes serious errors are detected when analyzing defective order to be clarified.  For example the former spouse's award in one order rejected by DFAS read as follows:  "The former spouse is awarded 50% of the disposable retired pay of a Lieutenant Colonel (O-5), with 13 years and 10 months of creditable service on the date of divorce." (emphasis added).

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Spoliation is the destruction of evidence.  In divorce, this mainly centers on destruction or deletion of social media content and text messages or video stored in a party's cell phone.  In order to prove spoliation, the party making the allegation must demonstrate that the party alleged to have committed spoliation had a duty to preserve the information.  People generally understand that a duty not to destroy or delete evidence exits once litigation starts.  Courts often include a prohibition against spoliation in "standing orders" that must be attached to an original petition or counterpetition.

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With respect to children and visitation in divorce, the norm in Texas is to name the parents “Joint Managing Conservators” with one of the conservators having the right to designate the primary residence of the children (with or without geographic restriction.   Being a Joint Managing Conservator means both parents have equal rights with respect to the children.  It does not mean that both parents have equal time of possession.
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