How are military retirement benefits treated in Texas divorce?

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While military divorces bear many similarities to civilian divorces, federal regulations regarding military retirement benefits can complicate matters. Duration of marriage during military service, proper documentation and capabilities of legal counsel all play integral roles in the outcome of military divorce settlements in Texas.


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Married for less than 10 years? Don’t expect much in the way of military retirement benefits

Texas is a community property state, which means any property or debts a couple accumulates during the marriage will be subject to just and equitable division upon divorce. Texas community property guidelines do apply to military divorces, with some restrictions.

The Uniformed Services Former Spouse Protection Act (USFSPA) allows community property states like Texas to treat military disposable retired pay (retired pay minus qualified deductions) as property. However, federal regulations dictate that a military couple must be married 10 years or more—and those 10 years must overlap with military service—in order for the spouse to be eligible for a portion of the service member’s military retirement benefits.

That means a military spouse who files for divorce after 8 years of marriage would end up with no portion of the service member’s retirement benefits. Compare that to a civilian divorce in Texas where the parties file a QDRO (qualified domestic relations order) and split retirement assets (IRAs, 401ks, 403bs, etc.) acquired during a marriage—regardless of marriage duration.

How does an ex-military spouse qualify for retirement benefits?

Once a couple is married 10 years (with 10 overlapping years of service), the spouse becomes eligible to receive a portion of the service member’s disposable retired pay. At 15 years, the ex-spouse is eligible to receive half of the disposable retired pay and one year of health benefits. At 20 years or more, the spouse becomes eligible for half of the disposable retired pay, health benefits (unless/until he or she remarries) and other benefits, like base privileges.

If you look at the number of active-duty military (1.3 million), reserve forces (800,000) and veterans (18.2 million), you can see why the federal government would want to place limits on who qualifies for military retirement benefits upon divorce.

To receive your fair share of military retirement benefits, hire a knowledgeable military divorce attorney

The federal government is a stickler for details. In order to receive your share of military retirement benefits, it’s essential to include the exact information and language the government requires in both the divorce decree and the military retired pay division orders.

This includes various requirements, such as length of time and dates of service and marriage among other details. The government bases the percentage of retired pay each party receives on this information, so it must be accurate and written as dictated by the federal government.

Fill out the orders incorrectly, and the government will reject the orders. Unfortunately, some divorce attorneys don’t understand the intricacies involved with military divorce and retired pay division orders. If the attorney gets it wrong and has to re-do the paperwork, he or she could charge you for their extra work and time, even though it was their fault. We don’t believe that’s ethical but it does happen.

That’s why it’s so important to hire an attorney who handles military divorces on a regular basis. At the Sisemore Law Firm, we have experienced military divorce attorneys on staff who have been dealing with divorce and retired pay division orders for more than 15 years. They pride themselves on getting the details right the first time.

Time—sometimes decades—must elapse before military retirement benefits can be collected

Another challenge some military exes face is time. Say you were married for 12 years but your ex, the service member, won’t be retiring for another 20 years. If he or she has been designated as the constructive trustee of the military retirement account, your ex would be required to pay you your share upon receipt of his or her retired pay, each pay period.

It’s not easy to keep track of an ex over a couple of decades—military or otherwise. If he or she doesn’t pay you as required, you’ll need to track him or her down and sue your ex in the same court that originally signed off on the orders. Conversely, if you are a retired service member and can’t track down your ex, you could end up violating orders even if you have the best intentions in mind.

This complicating factor of time is another good reason to hire an experienced military divorce attorney. He or she can help you weigh your options. Instead of splitting retired pay, perhaps it makes more sense to negotiate and grant the spouse extra equity in a home or other assets you share, or additional alimony or child support. The attorney can also explain what steps you need to take and if you would be eligible to request retired pay benefits directly from the government.

Texas alimony and child support may disappoint ex-spouses of service members

Upon divorce, military spouses are still eligible for alimony and child support in accordance with state guidelines. In Texas, spousal and child support typically doesn’t add up to a whole lot, especially if the service member paying the support is an enlisted person earning meager pay.

The minimal support afforded through Texas family code guidelines may pose a challenge for some ex-spouses. This is especially true for those who assumed a stay-at-home parent role while the other parent actively served in the military. The reality is this: Many of these stay-at-home parents will need to find work unless a more favorable divorce settlement can be reached. Again, hiring the right military divorce lawyer is essential if you want to reach a fair and equitable divorce settlement with your military spouse.

Looking for an experienced military divorce attorney in Texas?

The reputable family lawyers at the Sisemore Law Firm in Fort Worth are here to help and have been serving members of the military and their families since 2007. We also have attorneys on staff with more than 15 years of experience handling military divorce and child custody cases.

To schedule an in-depth case review with our founder Justin Sisemore, contact our office at (817) 336-4444 or connect with us online.

Photo Source: @rjamartinez via Twenty20

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