Articles Posted in Military

iStock-543681178Many assets divided in a Texas divorce are distributed during or soon after the divorce, but some assets, such as retirement benefits, may not be distributed for many years. Issues involving retirement benefits may continue or arise several years after the divorce is final. A Texas appeals court recently decided a dispute involving retirement benefits between parties who divorced in 2008.

Both parties were in the military when they divorced.  The stipulated final divorce decree divided the husband’s retirement benefits equally between them and awarded the wife 100% of her “retirement plan” or other benefits resulting from her employment.

Husband Argues He Agreed to Divorce Decree While Under Duress

The wife petitioned for a clarification of the division of the husband’s military retirement in 2017. The husband argued he agreed to the property division under duress because the wife had threatened to tell his superiors he was having an affair if he did not agree. He claimed he only agreed because he was concerned he would face a court martial or negative effects on his chances of promotion if she reported him.

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iStock-543681178Under federal law, a court may not treat military disability benefits as community property for purposes of property distribution in a Texas divorce case. A husband recently challenged the property distribution in his divorce decree, arguing the court had improperly divided a portion of his military disability benefits.

Trial Court Divides Husband’s Military Retirement Benefits

The wife petitioned for divorce and sought a majority of the community assets.  The court granted the divorce on grounds of insupportability and adultery.  The decree gave the wife 55% of the husband’s disposable military retired pay, attorney’s fees, and conditional appellate attorney’s fees. The husband appealed.

The husband contended the 55% of his disposable military retired pay awarded to the wife erroneously included disability payments. The wife, however, argued the award did not include disability benefits and the decree had specifically awarded him his “VA Disability and Social Security Disability benefits” as separate property.

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Texas, unlike many states, still recognizes common law marriage (also known as an “informal” marriage). Unlike with formal marriages, a common law spouse often has to prove that the marriage even existed before getting a divorce.  A party may prove that an informal marriage exists by showing that the parties agreed to be married, then lived together as spouses in Texas, and represented themselves to others as married.  TEX. FAM. CODE ANN. § 2.401(a)(2).

In a recent case, a woman challenged a determination that she and her former romantic partner had not established the existence of an informal marriage.  After they broke up, the man filed for a declaratory judgment that there was no informal marriage, but the woman counter-petitioned for divorce, alleging that they were informally married.  The woman argued they had an informal marriage starting in August 2014, but the man argued they had only been “boyfriend/girlfriend” or domestic partners.

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Are you currently serving in the military or know someone who is?  Texas is home to one of the largest populations of active military members in the nation.  As such, the Texas Family Code has specific statutes that address the unique issues facing our military members in the family law context.

For instance, what happens if you have primary custody of a child after a divorce and you are called overseas or ordered to military duty in another state?  Texas Family Code § 153.701 states the following: Continue Reading ›

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