The division of military benefits in a Texas Divorce

Suppose you are a person who either serves our country in the military or is married to a spouse who does. In that case, enough cannot be said about your family's sacrifices to allow your fellow citizens the opportunity to lead successful, productive, and happy lives. For this, we all owe you and yours a debt of gratitude.

It would be ideal for your lives to be led without strife or hardship, but unfortunately, that can't always be the case. Hardship can arrive at the foot of your door in the shape of a divorce. Today's blog topic from the Law Office of Bryan Fagan, PLLC, is on the subject of dividing retirement benefits in a military divorce.

Military retirement benefits in a nutshell

Unless you have researched the subject, you may not know exactly what is included in the retirement benefits that you or your spouse have earned through your career in the military.

Throughout your working lives, you may have accumulated a variety of financial accounts that contain money that you can utilize in retirement. 401(k) accounts, Individual Retirement Accounts (IRA), and pensions are just a few types of retirement plans available to people.

We will not go over each of these today, but it is a good idea to read into each of them so you can be aware of how each can impact you both in divorce and retirement.

What if your spouse has the retirement plan in their name- do you get credit for having saved money?

To answer this question, we would take a look at whether or not the money was contributed to the retirement account before or after the date you and your spouse became married.

Suppose the money was contributed before you were married. In that case, the state of Texas considers those contributions to be the separate property of your spouse and not subject to division in your divorce.

On the other hand, if the money was contributed to a retirement account after the date you were married, then those contributions are considered community property and are subject to division in your divorce.

Just as it would with a bank account and income deposited into that account during your marriage, it does not matter if your name appears on the retirement account or who contributed the money.

Depending on when the money was deposited, you will get credit, not whose name is on the account or whose job the deposits came from. It can be the case that retirement accounts are both community and separate property.

Does the length of your marriage have anything to do with your ability to access retirement benefits in divorce?

A lawyer's favorite answer to give anyone when asked a question is: "It depends." That response applies to the question I posed in the title of this section. We will need to examine the retirement account that is relevant to your case.

When you consider an IRA or 401(k), then the length of your marriage does not affect if the account is divisible in your divorce. However, a judge does not have to split these accounts straight down the middle. A just and right division of community property is the standard with which a judge would divide up any community property in your case- retirement accounts included.

An example to illustrate this point is if you and your spouse married later in life after your spouse had already contributed twenty years' worth of income into her employer's 401(k). Unfortunately, after only one year of marriage, you filed for divorce from your spouse.

In this situation, the first twenty year's worth of retirement contributions would be considered your spouse's separate property and would not be subject to division in your divorce. The final year's worth of retirement savings is subject to division- but even then, a judge does not have to award you a portion. They could award you other sums of money equal to the retirement account to allow the retirement not to be divided up.

When it comes to pension plans, military retirement benefits, and social security benefits, there are different rules on how the length of your marriage can affect your eligibility to receive a portion of retirement funds upon divorce.

How can you find out whether or not your spouse even has any retirement benefits saved?

Did you and your spouse rarely, if ever, discuss financial matters like retirement during your marriage? If so, then you can count yourself among the many, many Americans who are in the same boat as you. With the hurried pace of our day-to-day lives, it is not uncommon to focus on other, more pressing issues than down the road topics like retirement.

If you are contemplating a divorce, it may be worthwhile to look at a paycheck that your spouse receives to see if there is money being taken out to go towards a retirement plan of some sort. If your spouse is a member of the military, then it is likely that their pension will send out periodic statements to your home and have a notation on each paycheck with the amount stated, which goes to their pension fund.

More on military retirement to be posted in tomorrow's blog from the Law Office of Bryan Fagan, PLLC.

Thank you for showing an interest in this vital topic. Tomorrow we will continue our discussion on retirement benefits and divorce and hope you return to read and learn more.

In the meantime, if you have any questions about this topic or any other in the field of family law, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Consultations with our licensed family law attorneys are free of charge and are available six days a week.

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