Ex-husband Denied Share of Ex-Wife’s Military Retirement Years After Texas Divorce

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.

In his counter-petition, the husband alleged the decree had not addressed the wife’s military retirement and asked the court to award him half.

The trial court granted the clarifying order regarding the husband’s benefits.  It also found that the decree had addressed the wife’s benefits and denied the husband’s request. The husband appealed, again arguing he agreed to the divorce decree due to duress.

Husband Appeals – Wife Retains McClure Law Group to Defend

The wife retained Brandon Joseph and Georganna Simpson of McClure Law Group to defend against the husband’s appeal. The wife argued his duress claim was an impermissible collateral attack on the decree.  A collateral attack is only allowed when the divorce decree is void. A judgment is only void if the court did not have jurisdiction or the capacity to act. Other errors render the judgment voidable instead of void, and voidable judgments must be attacked directly rather than collaterally.  Direct attacks include appeals and motions for a new trial and must be brought within a specific timeframe. A collateral attack, however, challenges the judgment’s integrity outside the appellate process.

The husband in this case did not attack the divorce decree directly. His counter-petition in the current case did not allege the trial court did not have jurisdiction to issue the divorce decree. He instead challenged the agreed divorce decree on the grounds he signed it under duress. The Texas Supreme Court has held that delayed attempts to challenge agreed judgments through contract defenses like duress constitute impermissible collateral attacks. Because the husband had not shown the trial court lacked jurisdiction, he could not succeed in a collateral attack against the divorce decree.

The husband also argued the trial court abused its discretion by not dividing the wife’s military retirement. Pursuant to the Uniformed Services Former Spouses’ Protection Act, a court may divide military retirement benefits during a divorce case. 10 U.S.C. § 1408(c)-(d). In Texas, accrued benefits in a defined employee benefit retirement plan that have been earned during the marriage but not yet vested and matured are a community asset.

Although the divorce decree did not specifically reference the wife’s military retirement benefits, it did award her “[all sums . . .related to any . . . retirement plan . . . or other benefits existing by reason of the wife’s past, present, and future employment.”  Texas case law has held that similar language includes military retirement benefits. The appeals court found the decree had awarded the wife her own retirement benefits and the trial court had properly denied the husband’s request to divide those benefits.  Dividing the benefits after they had been addressed in the decree would have constituted an improper amendment of the division.

The appeals court affirmed the judgment, denying the husband’s appeal.

Divorce and Appellate Issues are Complex – Call the Experienced Attorneys at McClure Law Group Today

This case shows the importance of promptly raising any issues or concerns.  Some issues can only be addressed through the appeals process.  If you anticipate a divorce, an experienced Texas divorce attorney can help you protect your rights, even in an agreed property division. Schedule a consultation with McClure Law Group by calling us at 214.692.8200.

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