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?