Federal Civil Service Divorce

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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In a Federal Civil Service divorce, will for former spouse who has been awarded a Former Spouse Survivor Annuity always collect on that annuity after the death of the employee?  Not always.

Federal law provides that if the employee completed at least 18 months service, but LESS THAN 10 YEARS SERVICE at time of death, then the former spouse only is entitled to the Basic Employee Death Benefit.  This remains true even if a divorce decree and court order accepted by OPM had ordered a Former Spouse Survivor Annuity. 

The Basic Employee Death Benefit is as follows:

1. Fifty percent of the final annual rate of basic pay of the employee; plus,
2. Fifteen thousand dollars (adjusted annually by cost-of-living adjustments for retirees since 12/0/1987; currently in 2017 worth slightly more than $32,423).

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TSP can provide a spouse with the plan participants account statements to help the spouse, in divorce, develop a proper court order. The information that TSP will provide includes:

• Participant's account balance;
• Participant's outstanding loan balance, if any; and,
• Annual or Quarterly statements for the period requested.

 A subpoena is not required to obtain the info above.  A proper written request from the spouse, or the spouse's attorney, is sufficient.  A proper request must include:

• Participant's name and account number OR social security number;
• The name of the person requesting the info and the relationship of that person to the Participant;
• A description of the information needed (e.

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