Howell came down and held that a state family law court cannot consider disability pay as community property when dividing up retirement benefits in your divorce.
What this means on a ground level for you is that your family law court cannot award your spouse any part of your military disability pay and cannot increase the amount of other assets that your spouse receives in the division of your community property due to your receiving military disability pay. This is a huge win for veterans who have suffered service related injuries that have led to them being declared partially or totally disabled.
The Divorce Process for Military Service Members and Families
You and your spouse have the ability to waive this and agree to have the disability pay included in any calculation but this does not happen with much frequency. If you and your spouse agree to do something like this, what you would need to do in your Mediated Settlement Agreement MSA is to state that you will increase the amount of your retirement pay your spouse will receive in order to make up for the deficiency caused by your receiving military disability pay. The USFSPA requires that your spouse be awarded an amount of benefits that will be either a specific dollar amount usually expressed monthly or a percentage of disposable retirement pay.
The manner in which the division of the retirement benefits occurs is up to the judge in your case. There is a formula, however, that the law outlines on how it can be done.
Calculating the Marital Share for Active Members
Essentially, your judge would need to take the number of years that you and your spouse were married while you were also serving in the military and would divide up that number of years by the years that you served in the military. I realize that the previous paragraph, while accurate, may be a little confusing. Suppose that you served in the Marines for twenty years. Of those twenty years of service you were married to your spouse for the last ten.
You and your spouse lived together for the entirety of those ten years. Note that your spouse would not be eligible to receive this portion fo you leave the military before you reach retirement age.
When this percentage is multiplied by. A Texas family law court can order that future retirement pay be divided up even if your right to receive that future pay has not yet vested.
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Practically speaking this means that your spouse will receive their percentage of your retirement benefits when and if you become eligible to receive the benefits and actually do start to collect. A court cannot order you to retirement from the military in order to order the payment of future benefits.
A court also cannot order you to serve in the military long enough for these benefits to vest in you. If it is ordered that you pay future retirement benefits as a result of your divorce and you do not. Thank you for your interest and attention to this important topic. Texas is home to more active duty military and veterans than any other state and as a result our office has the privilege of representing many people associated with the military.
We hope you will join us tomorrow as we continue to cover the subject of military benefits and retirement pay in a divorce. And, if your home state is not Texas, but you have been living in Texas on military duty for 6 months, and in your particular county for at least 90 days, then you can also file for divorce here in Texas.
As your military divorce lawyer, Megan Cook will not require you to come in person to file the divorce, but rather, you can hire the Firm online, and then Megan Cook will electronically file the divorce for you in the proper District Court of the county of your home residence. In other words, you should talk to your ex and see if you can agree on how to divide the debts, assets and children into the future. The more you can agree on, the more time and money you will save on the divorce.
Military Divorce in Texas FAQ
If you have a part as friends type of divorce case, then you simply file the case, and tell your spouse that the case has started. Then you will both work together to fill out the divorce agreement information. Absent temporary orders from the court, Texas does not require that you will pay your spouse alimony during a pending divorce case. However, you are not permitted to cut your spouse off from any of their credit cards, or ability to pay normal living expenses during the pending divorce case.
Many spouses in agreed divorces come up with agreed alimony arrangements between themselves to help one another pay basic bills while both parties are getting back on their feet after the separation. San Antonio, and many other cities have standing orders about how money must be used and not used during a pending divorce.
See the standing orders of Bexar County here.
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Absent temporary orders by the Court, there is no set law that a person has to pay child support to the other spouse during a divorce case. But, many parties in a friendly divorce come up with fair arrangements for how to support the children while the divorce case is pending.
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Coming up with agreements like this saves both spouses times and resources from going to court for a hearing where the court will order child support. We will use this information to counsel you on your choices, and then to draft your decree of divorce, as well as other closing documents in your case that apply. We will email you the proposed divorce agreement, for you to review. You can forward it via email to your spouse to review as well. Once both parties agree that the document reflects the terms of the divorce agreement, both parties will sign off on it.
Most Military cities of Texas will allow us to waive your need to appear at the final hearing. Rather, we as your Military divorce lawyers will appear and present your final hearing.