Military Divorce Issues in San Antonio, Texas

One of the most common questions I hear, as a San Antonio, Texas divorce lawyer, is: "Do you handle military divorces?"  Military servicemembers often find themselves in need of a San Antonio, Texas, divorce attorney, whether or not they are stationed in San Antonio, Texas or in other parts of the world.  I currently have active divorce cases with clients who live in Europe, the Mideast, Africa, Japan--virtually every part of the world.  Many of these clients have never met me in person, since it is generally impractical for them to come all the way to the United States just to have an initial conference with me.  Instead, I offer free initial telephone consultations and I make myself available during weekends and evenings to accomplish the servicemember's schedule.

What makes a military divorce different than a non-military divorce?  Although a divorce involing a miitary servicememeber is in many ways identical to a divorce which does not involve a military service member, there are some important differences, chief among those being the issue of military retirement benefits.  How military retirement benefits are treated is generally left up to the state in which the service member is being divorced, with certain limitations mandated by federal law.  For instance, federal law generally prohibits any state from awarding VA Disability Benefits to the non-service member spouse.

Many servicemembers mistakenly believe that the non-service member spouse is only entitled to a portion of the  servicemember's military retirement benefits if the parties have been married for more than 10 years.  The source of this mistake is the federal law which prohibits direct payment of those benefits to the non-servicemember spouse unless the parties have been married more than 10 years, during which time the servicemember was engaged in full-time active duty service.  In Texas, any retirement benefits which accrue during the marriage are usually treated as community property.  If the parties have been married less than ten years, a portion of the retirement benefits can, and usually is awarded to the non-seservice member spouse, and the servicemember spouse is required to pay a portion of his/her retirement to the nonservice member (ex)spouse once the servicemember retires, or immediately if the servicemember spouse is already retired at the time of the divorce.

Related to the issue of military retirement benefits is the Survivor Benefit Plan Election.  This can be an extremely complicated issue, and the details are beyond the scope of this posting.  Under federal law, military retirement benefit payments to a former spouse usually terminate upon the death of the servicemember (or the former spouse). The SBPA is similar to a life insurance policy, and provides for continued payments to the non-servicemember spouse or former spouse in the event of the servicemember's death after retirement.  This is an over-simplification of the SBPA law, so suffice it to say that the SBPA is an issue which should be addressed by the client with his or her divorce lawyer early on in the divorce process whenever military retirement benefits have accrued during the marriage.

Another important issue in a Texas divorce involving a military service member is whether or not the non-military servicemember spouse will continue to be entitled to military health-care benefits after the divorce.  This issue is mandated by federal law, and depends on the amount of time the parties have been married and the amount of time the servicemember spouse has been engated in full-time active duty military service.

The issue of child support can also be different in a Texas divorce involving military service members.  Typically, the issue arises regarding the inclusion of the servicemember's non-taxable entitlements such as allowances for housing, sustenance, clothing, etc.  Texas law requires that all types of income be included to determine the "net resources" of any person who will be ordered to pay child support, but the Bexar County judges do not always treat those entitlements identically.  A related issue is whether the value of on-base housing should be included in a service-member's net resources.

These comprise the main differences between Texas divorces involving one or more military service members and divorces not involving military service members.  There are other issues as well, so any service member who becomes involved in a Texas divorce should use an attorney who is experienced with military divorce issues.

The Law Office of J. Michael Clay is experienced in handling divorce issues in the military context.  Since 1991, J. Michael Clay has represented hundreds of clients in Bexar County, Texas and the surrounding counties.  The Law Office of J. Michael Clay focuses its practice on family-law issues such as divorce, child custody, child support, adoption, modification and enforcement issues.

J. Michael Clay is licensed by the State Bar of Texas to practice all types of law in all types of Courts.

J. Michael Clay is also licensed by the Federal Bar to practice in federal courts in the Western District of Texas.

Not certifed by the Texas Board of Legal Specialization in any particular area.

Comments

[Bill]

Your BLOG concerning death of former spouse doesn't mention reinstatment of retainer pay. You mention SBP. What if former spouse dies does retainer pay return to full amount since no more claim and does this nulify the divorce decree?

[alton t stephens]

question? about a divorce, and the military member now gets full disability vice retirement (since one replaces the other), does the exspouse get "cut off" and cannot get any of here agreed on payments when it is va vice mil retirement?

[Alan R Hakes]

I am a retired soldier. I was married to a soldier, she later got out of the Army and later got back in and then got out. She was on active duty for 6 years and 6 years in the Army Reserve. Does that time count. She had a career as a soldier and gave it up. How does that fit into the formula.

[jessica]

My husband is in the military and we are married for almost 2 years now. I am filing for a divorce. What benefits will I get? Will the number of years affect the benefits I will get?

Another thing, he is on duty overseas right now and I cannot send him divorce papers yet according to this Military Divorce (http://knol.google.com/k/mia-carmel-wong/military-divorce/q5t344oxarzd/2 ) information I got. "America's federal politicians don't want their armed services personnel distracted when fighting to defend their country. That's why there is federal legislation which, amongst other things, makes it difficult if not impossible to serve certain legal documents on a member of the military. In fact a serving member on duty overseas is not required to accept divorce papers and can continue to refuse for up to sixty days upon returning to the United States."

[G]

I am a soldier. I was married to a soldier, he left active duty right before we were married and then he went into the reserves for 3 years and now that our divorce is almost finalized he has now went back on active duty. I did not fight the divorce and gave him what he wanted....I did not even have representation, and now that our divorce is almost finalized he has since started asking about my retirement!!! Does any of his time count for me and even if I signed that he could keep his 401k in the divorce if he tries to take 1/2 my retirement can I then go for 1/2 the 401k? Oh ya by the way I paid for all his school so he could get his direct commission. Help...what can I do to keep what I have earned?

[Ann Marie Garcia]

My question is if the exspouse is entitled to retirement benefits if the matter was not addressed during the divorce? I was married to a military member for 6 1/2 yrs (1990-1996) and he is now going to retire. Does that mean I no longer am entitled to any of his retirement benefits?

[Dennis Rich]

I am retired from the Army, receive VA disability and Social Security, which were all earned and received years PRIOR to marriage. I am now divorcing in TX after 5 years. We have no kids, no real assets. Please tell me if my wife is entitled to any of my benefits if they were earned years before we even married.

[Donnie Howard]

I have been in the Military 19 years and only to return from Iraq to have my wife tell me she wants a divorce and left me and my son who is 13 for which is in my custody. She has not called him once in the last 3 weeks to even talk to him. She said I can have custody of him but how much of my retirement can she get and I was told I would have to have been 20 years for her to get any Medical. We got married in Virginia and have been in Texas for the last going on 3 years for where the divorce in being filed.

[Gracelyn]

I have followed all things that you said. Thanks.
http://www.filecatch.com/trends/cl/11-08-2010.html

[Denise]

I am divorced already and remarried. I have an 8 year old from the previous marriage and a baby with my husband. My husband is active duty Army and we are wanting to go back to court to get full custody of my 8 year old and permission to leave to wherever husband might get stationed. We think we have a good case. There is some neglect and mistreatment to my daughter under ex's care by him and his girlfriend. My daughter vocalizes she wants to be with us but I realize she is too young to have a say. We really need someone with experience with military divorce/custody. We need someone who has a great track record and not afraid to be our bulldog when needed. Can anyone help us find the right attorney?

[Erika]

I was married to a TARNG Special Forces NCO for 8.5 years. He has a total of about 17 years of service, but only about 5 during our marriage. (He blazed through about 4 good jobs before re-enlisting in the military.)

He violated several of our temporary orders, moving us out of our house when the lease came up, put our things in $350/month storage, and basically left us homeless for the summer, sending child support and random payments, but I had to text to remind him to call our son. For weeks he did not even check to see where we were.

I said nothing (when he violated orders) for fear that he would be fined or put in jail and felt that he he would make it right in the end.

After moving us, he quickly scheduled a court ordered mediation. I did not have money for an attorney until a few days before, had been moving from place to place all summer with my son, my dog, without with my documents etc., and everything in storage. Was basically an emotional and unprepared wreck for the mediation and my lawyer sat there and read his newspaper.

Now the divorce decree has been entered, the lawyer said it was too late to do anything about the temp order violations, my son and I live in a hotel and our things in storage because we can't afford to move them. He seems to have no legal obligation to help with those expenses, and feels no ethical obligation to help us get back into a place to live even though I gave up a career to care for our son, and gave up a good job to follow his current one.

I have hired to attorneys, both were in the military, and am starting to believe that there might be some kind of allegiance to other military members as neither attorney seems to care about mine or my sons situation enough to fight for our rights.

I wish that I had not protected his job by not taking legal action when he violated the temp orders. And in the mediation, our house that we own in Houston was not addressed because the lawyer and mediator seemed to tired to deal with it. They said I couldn't just keep bringing things up. To this day the lawyer and his paralegal act like it is too much if I ask a question about our case.

I am really disappointed in the legal system in Bexar county and that my attorney seems to think this is all okay now that he has his retainer fee.

Based on my experience, I would say if you are the non military spouse, stay away from military attorneys. I've had no good experience with them, but a friend of mine who has no military ties was treated much better. Good luck!

[coco chanel]

There is some neglect and mistreatment to my daughter under ex's care by him and his girlfriend. My daughter vocalizes she wants to be with us but I realize she is too young to have a say. We really need someone with experience with military divorce/custody.

[ClubPenguinCheats]

There is some neglect and mistreatment to my daughter under ex's care by him and his girlfriend.

[Norm]

I divorced my wife and she was awarded one third of my military retirement. Now she has re married. My spousal support has discontinued. Is she still entitled to my retirement pay?

[Michael]

What is the cost to file. How long does it take to do the paper work. How do you handle out of state papers, Fax, Mail, local attorney in my area?