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Family Law

Saturday, April 30, 2016

Divorce and Ex-Spouse's Authority Under Statutory Durable Power of Attorney


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.


Read more . . .


Sunday, April 24, 2016

How Does a Military Grandparent get a Grandchild in their Custody TRICARE Eligible?


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.

Read more . . .


Tuesday, April 12, 2016

Military Blended-Families: Overseas Assignment and Command Sponsorship of Stepchildren


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

Read more . . .


Sunday, April 3, 2016

Post-Divorce Spousal Maintenance May Not Factor VA Disability Compensation


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.


Read more . . .


Sunday, March 13, 2016

Getting a Simple Divorce When Your Spouse's Whereabouts Are Unknown

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.

 


Sunday, February 21, 2016

Dissolving the Community Estate During Marriage: Scenario for Military Divorce

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.


Wednesday, February 10, 2016

Dissolving the Community Estate During Marriage: Creating Only Separate Property

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.

 


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.


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