Division of Military Retirement in a Texas Divorce

A Domestic Relations (“DRO”) is often used in divorce to address the rights of the former spouse as an alternate payee to receive some or all of a participant’s benefits under a retirement plan.  A trial court generally does not have the authority to render orders after expiration of its plenary power over a final judgment.  If a Texas divorce decree becomes final and unappealable without rendering a DRO, then the trial court only has the authority to render a valid DRO upon a petition and service pursuant to the Texas Rules of Civil Procedure.  A judgment is rendered when the trial court officially announces its decision orally in open court or in a filed memorandum. An oral rendition must indicate the trail court’s intent to render the full, final, and complete judgment.

A husband recently appealed a DRO.  The parties entered into a mediated settlement (“MSA”) that was memorialized in the agreed final divorce decree.  The decree included provisions related to the husband’s military retirement and stated they would be more particularly described in a Domestic Relations Order (“DRO”).  The husband his attorney signed the decree.  The husband moved for the signing of the DRO in June 2022, stating he believed the proposed DRO accurately reflected the parties’ agreements.  The court and the parties’ attorneys signed the DRO.

After the husband got a new attorney, he moved to vacate the DRO, arguing the divorce decree was not a rendition of judgment on the DRO and the DRO had been rendered outside the court’s plenary power.  He argued, in the alternative, for modification of the DRO because the calculation used to determine the wife’s share was not in compliance with federal law.  The trial court denied the motion.

The husband filed another motion, now also arguing the DRO improperly awarded the wife benefits not included in the decree.  His attorney argued the husband had not seen or approved the DRO before it was signed.  The wife’s counsel argued the husband was responsible for drafting the DRO and had agreed to the decree that incorporated its term. The trial court denied the motion and the husband appealed.

The final divorce decree was signed on April 27, 2022.  With no post-judgment motions, the court’s plenary power expired 30 days later.

The wife argued that the husband had not met the burden of showing reversible error.  There was not a reporter’s record of the hearing resulting in the final decree or the hearing on the husband’s first motion to vacate.

The appeals court assumed without deciding that the trial court’s decree did not constitute a rendition of the DRO.  The issue, then, was whether it had orally rendered judgment on the DRO during its plenary power.

Evidence of an oral rendition includes the trial court’s statements on the record, docket entries, witness testimony, or the recollection of the trial judge.  The final decree and the order denying the first motion were signed by the same judge.  The appeals court concluded the trial court must have found that it rendered the DRO during its plenary power when it denied the husband’s first motion to vacate.  The father argued in both motions to vacate that it was impossible to determine if there was an oral rendition during the April 27, 2022 hearing without a reporter’s record.  The appeals court further noted it could not know what evidence and arguments were considered in the hearing on the first motion to vacate, including any of the judge’s own recollections of the prior hearing.  Without records of the hearings, the appeals court determined it had to presume those records would support the implied finding of fact that the trial court rendered the DRO during its plenary power.


The husband also argued the formulas used to calculate his retirement benefits in the DRO were contrary to the law.

Pursuant to the Uniformed Services Former Spouses’ Protection Act (“Act”), a court may treat military “disposable retired pay” as community property.  “Disposable retired pay” includes the total monthly retired pay minus any amounts deducted due to a waiver required to receive disability benefits.  10 U.S.C. § 1408. The U.S. Supreme Court has held that the Act completely pre-empts states from dividing waived military retirement pay as community property.  Howell v. Howell. Case law has held this pre-emption applies even if the decree is based on  the parties’ settlement agreement or if the retiree made the waiver election well after the divorce.  Additionally, the Texas Supreme Court has held the decree cannot prohibit a military retiree from making an election related to benefits that is allowed by federal law.  Ex parte Burson.

The DRO calculated the wife’s share of the husband’s active-duty retirement benefits by multiplying 50% times the fraction of 280 months of marriage during the husband’s creditable military service over his total months of creditable military service.  The wife’s share of the reserve-duty retirement was 50% times the total number of Reserve retirement points the husband earned during the marriage divided by the total number of Reserve retirement points he earned.  The appeals court noted the DRO calculated the wife’s share but did not indicate how to calculate the retirement pay.

The DRO needed to calculate the amount of disposable retired pay to which the husband was entitled when the parties divorced.  The court also had to use the statutory formulas to determine that amount.  The appeals court concluded the DRO did not properly calculate the husband’s military retirement pay, nor did it specify that his active-duty retirement had to be calculated as of the date of the divorce.  The appeals court therefore reversed the DRO.

The appeals court also agreed with the husband that calculating his military retirement required significant fact-finding related to the length and nature of his military service. The appeals court concluded the trial court had not made sufficient findings as required by federal law to calculate his retirement pay as of the divorce date.

Survivor Benefit Plan

The husband also challenged the language ordering him to name the wife as a former spouse beneficiary pursuant to the Armed Forces Survivor Benefit Plan (“SBP”).

Under the SBP, a person entitled to military retirement pay may elect to provide an annuity payable upon their death to their former spouse.  The husband argued the provision in the DRO awarding SBP benefits to the wife imposed an obligation on him that was not included in the divorce decree.

The appeals court rejected the husband’s argument the decree divided his “military retirement pay and not his SBP,” noting the plain language of the decree divided the husband’s “military retirement benefits” and “U.S. military retirement” without limiting them specifically to retirement pay. Furthermore, the DRO was incorporated into the decree, and was intended to divide the husband’s “military retired pay and other military benefits payable in retirement. . .”

The appeals court reversed the provisions of the DRO that prohibited the husband from making elections that could affect the wife’s right to receive retirement pay and setting out the formulas for calculating the wife’s share of the husband’s military retirement pay.  The appeals court remanded to the trial court to delete the paragraphs addressing calculations of the wife’s share of the husband’s military retirement, conduct additional fact finding to determine how to calculate the retirement pay under federal law, and enter an amended DRO complying with federal law, specifying how to calculate the military retirement pay, and using the appropriate formula to determine the wife’s share of the retirement.

Contact a Skilled Texas Divorce Attorney

Military retirement benefits can be a complex issue in a divorce.  If you or your spouse have military retirement benefits or other complex assets, the experienced Dallas family law attorneys at McClure Law Group can help.  Schedule a consultation at 214.692.8200.

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