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.
Note1: See Preston v. Preston, 2004 Tex. App. LEXIS 7376 at *5-6 (Tex. App.—San Antonio, Aug. 18, 2004, no pet.) (memo op.).
Note3: Civ. Prac. & Rem. Code Sec. 16.004(a)(5).
Note4: See Preston v. Preston, 2004 Tex. App. LEXIS 7376 at *5-6.
Note5: Tex. Fam. Code Sec. 9.003.